A Democratic coalition of 17 senators and attorneys general from 21 states want more time to comment on the Department of Labor’s (DOL) independent contractor rule.
In a Sept. 28 letter addressed to U.S. Secretary of the DOL Eugene Scalia, the coalition asks to extend the public comment period beyond 30 days, according to media reports.
“The Proposed Rule raises extremely important legal and policy matters that will affect workers in our states, and which also have the possibility of directly impacting the states’ own administrative costs and tax revenues,” states the letter, which was signed by the Attorneys General of New York, Pennsylvania, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia and Washington.
However, supporters of the DOL proposed rule, are critical of the need for an additional 30 days for public comment.
“If I, a sole practitioner, can find out about and respond to a proposed rule that interests me within 30 days, then why can’t a gang of Attorneys General each with a large staff and all of whom will probably submit the same comment respond within 30 days,” said Nina Yablok, an employment attorney who wrote a blog about the benefits of the DOL independent contractor rule. “Don’t they have anyone in any of their offices who understands the issues well enough to craft a response quickly?”
As previously reported, the DOL is revising its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA), which could open the door for federal challenges to Assembly Bill (AB) 5 in California.
“The only reason any state is not satisfied with their existing laws is that converting independent contractors to employee status is usually the only profitable activity of any state,” Yablok told the Southern California Record. “So, making it easier for the payroll taxing agencies to make money at the expense of individual entrepreneurs trying to start new businesses as freelancers is political.”
Released on Sept. 22, the proposed new independent contractor rule would give employers a 5-pronged economic reality test to help them classify workers as either independent contractors or employees. If finalized, the coalition is expected to file a lawsuit seeking to invalidate the rule.
“Workers who are exploited by being inaccurately characterized as independent contractors are already protected by existing laws,” added Yablok. “The abuses that were more prevalent 20 or more years ago are significantly reduced by the existing laws and subsequent clarifications by the courts.”