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"The Impossibility of Comprehending, or Even Reading, All Federal Regulations"

https://www.mercatus.org/publications/regulation/impossibility-comprehending-or-even-reading-all-federal-regulations

On May 6, Bob posted a notice of rule withdrawal by the Department of Labor. The rule was an interpretation of the meaning of "independent contractor" under the Fair Labor Standards Act.

A 40-page proposed rule had been published on September 25, 2020. The 81-page final rule had been published on January 7, 2021, to be effective on March 8. But on March 7, DOL postponed implementation. Then on May 6 DOL withdrew the rule in the 24-page notice that Bob posted.

All to interpret "independent contractor."

Speaking politically, the final rule had been a last-minute Trump administration action, which the Biden administration promptly cancelled.

Our government at work. Mirabile dictu. It's a miracle that anyone starts a business and creates jobs. We should erect a monument in D.C. to those brave enough to start businesses, hire people, and try to survive government. They are at least as brave as the ubiquitous generals on horseback.

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I had read much of the DOL rule this morning, mainly interested in the why’s and wherefor’s. That was before seeing your post just now. I was curious about the political aspects but just the complexity of the entire rule was overwhelming.  So, I quit reading...

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With respect to the rule that withdrew the rule, 86 Fed. Reg. 24303, May 6, 2021—the one that Bob posted on May 6—the topic is a very complex legal issue. Reading it is heavy going, but not because the rule is badly written. It struck me as one heck of a great piece of writing. To the extent that it is hard to follow, it is because the law (regulation and case law) is very complex. The explanation is masterful. That writer designed and executed terrific English sentences.

Quote

The FLSA's minimum wage and overtime pay requirements apply only to employees. Section 3(e) generally defines “employee” to mean “any individual employed by an employer.”  Section 3(d) of the Act defines “employer” to “include[ ] any person acting directly or indirectly in the interest of an employer in relation to an employee.” Section 3(g) defines “employ” to “include[ ] to suffer or permit to work.” 

The Supreme Court, in interpreting these definitions, has stated that “[a] broader or more comprehensive coverage of employees within the stated categories would be difficult to frame,” and that “the term `employee' had been given `the broadest definition that has ever been included in any one act.' ” The Supreme Court has further stated that the “striking breadth” of the FLSA's definition of “employ”—“to suffer or permit to work”—“stretches the meaning of `employee' to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Thus, the FLSA expressly rejects the common law standard for determining whether a worker is an employee.

Though the FLSA's definition of employee is broader than the common law definition, the Supreme Court has also recognized that the Act was “not intended to stamp all persons as employees.” The Supreme Court has acknowledged that even a broad definition of employee “does not mean that all who render service to an industry are employees.” One category of workers that has been recognized as being outside the FLSA's broad definition of “employees” is “independent contractors.” Courts have thus recognized a need to delineate between employees, who fall under the protections of the FLSA, and independent contractors, who do not.

 

Footnotes omitted.

Very clear. Someone should mail a copy to the FAR councils.

For students of regulation, the rule's discussion of the issues shows how terribly difficult it can be to define seemingly straightforward terms like employee and independent contractor in the context of government policy.

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17 hours ago, joel hoffman said:

I was curious about the political aspects

More curious to me is what comes next?  I have followed with interest but admittedly not a full grasp of the legal back and forth.   The rule as I understand had strong implications with regard to the gig economy.   With it now withdrawn it appears the head scratching and legal interpretations of independent contractor versus that of employee will continue to be in controversary, especially for FLSA.   FLSA has been fairly absent as the basis for court actions of independent contractor/employee for the large gigs such as Uber with matters solved, again as I understand, in private arbitration.  But there has been occasion where FLSA has been rolled in.   The courts will mostly likely continue to be tasked with defining via the specific "economic realities" that leads to matters of "control" of the individual in specific cases sent their way.

Personally I remain confused by the Executive Branch over the many years that has strongly supported the legislation of a minimum wage through the likes FLSA, SCA, DB yet increases the confusion by EO and otherwise.  

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12 hours ago, Vern Edwards said:

With respect to the rule that withdrew the rule, 86 Fed. Reg. 24303, May 6, 2021—the one that Bob posted on May 6—the topic is a very complex legal issue. Reading it is heavy going, but not because the rule is badly written. It struck me as one heck of a great piece of writing. To the extent that it is hard to follow, it is because the law (regulation and case law) is very complex. The explanation is masterful. That writer designed and executed terrific English sentences.

Footnotes omitted.

Very clear. Someone should mail a copy to the FAR councils.

For students of regulation, the rule's discussion of the issues shows how terribly difficult it can be to define seemingly straightforward terms like employee and independent contractor in the context of government policy.

There was a lot of dedicated hard work, thought and time invested in developing the rule. I could only imagine how deflating it must be to have your efforts summarily dismissed and cancelled.

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17 hours ago, joel hoffman said:

There was a lot of dedicated hard work, thought and time invested in developing the rule. I could only imagine how deflating it must be to have your efforts summarily dismissed and cancelled.

Sometimes the sunk cost fallacy or plan continuation bias is hard to overcome even when a new course of action is appropriate.

The drafters can take a retrospective look at what happened and use this event to focus on learning and growth. I’m sure they’ll identify areas for improvement (process, tools, decision making, etc.) and not let this go to waste.

I know I’ve elevated my awareness of potential issues and things to consider, when communicating, as a result.

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The new independent contractor rule and its subsequent withdrawal were matters of politics.

The Trump Administration wanted to make it easier for employers to label workers independent contractors. The Biden Administration wants those workers to enjoy employee status and the protections that come with it.

The Trump Administration pushed the rule through just days before Biden's inauguration. The Biden Administration responded by withdrawing the rule as soon as it took power. This is all very clear from the explanation of the rule announcing the withdrawal and the discussion of the public comments received about the withdrawal.

If you are a professional regulation writer, your job is to write rules as directed. You should not be personally invested. It's just another task, one way or the other.

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