House Committee Chairwoman Warns Labor Dept. of Subpoena in Worker Classification Dispute

Rep. Virginia Foxx (R-N.C.) speaks during a House Committee on Oversight and Reform hearing on gun violence in Washington on June 8, 2022. (Andrew Harnik-Pool/Getty Images)

Rep. Virginia Foxx (R-N.C.) announced her intention to subpoena the acting secretary of labor if the Department of Labor (DOL) doesn’t provide the information requested by the committee she chairs.

Foxx announced in an Aug. 8 press release from the Committee on Workforce and Education that the committee would subpoena DOL Acting Secretary Julie Su due to her failure to provide responses on what the chairwoman termed as worker misclassification.

The inquiry is related to the department’s new rule issued in February of this year, which redefined those who can be classified as independent contractors.

According to the DOL, the new rule was put in place to protect workers who could be misclassified as independent contractors and would be denied protections under the Fair Labor Standards Act.

Foxx said in her letter to Su that “the Biden-Harris administration’s ultimate goal appears to be to all but eliminate independent-contractor status, classifying as many workers as possible as employees through government mandates that limit the flexibility that independent work provides.”

The lawmaker argued that the labor department’s push to classify more workers as employees restricts the flexibility and freedom that independent contractors enjoy. She emphasized that the Committee needs comprehensive data on how the DOL is implementing the Fair Labor Standards Act to assess potential legislative actions related to federal wage and hour policies.

“The Committee on Education and the Workforce is continuing to seek information about the administration’s efforts to eliminate the independent contractor model and classify as many workers as employees as possible in order to increase government control over workers,” Foxx said.

Foxx highlighted several unanswered questions, including the number of misclassification cases and an inquiry about whether the DOL has coordinated with the National Labor Relations Board and the Federal Trade Commission on misclassification. She also demanded detailed counts of any such investigations.

When the rule was announced in January, Su spoke to the rule in a post on X, saying, “Labor protections are a promise of a floor beneath which no one should be forced to live and work.

“Misclassification, the practice of calling someone an independent contractor when they are actually an employee, is a breach of that promise.”

Under the Fair Labor Standards Act, employees are entitled to minimum wage, overtime pay, and other protections that are not applicable to independent contractors.

According to the Department of Labor, the new rule reverts to a multifactor analysis that has been “used by courts for decades” to determine whether a worker is an employee or an independent contractor, thereby rescinding the two-factor 2021 rule established by the Trump administration.

The 339-page rule outlines a six-factor analysis for classifying workers, including the worker’s opportunity for profit or loss, financial stake in the work, the amount of control the business has over the work, and the level of the worker’s skill and initiative.

Previously the rule looked to the nature and degree of control the person had over their work and their opportunity for profit or loss as the way of determining a possible contractor’s status.

Foxx said near the end of the letter, “Unfortunately, your responses to these QFRs provided none of the requested data. Your failure to provide the requested information has obstructed the Committee’s oversight activities. ... DOL’s failure to provide complete responses to oversight on this matter could lead the Committee to take compulsory action.”

The Epoch Times did not immediately receive a response to request for comment from the Department of Labor.

Jana J. Pruet contributed to this report.