The Trump Administration Is Making It Harder for Workers to Hold Big Corporations Accountable

The government wants to make it much harder for workers to hold employers accountable for wage theft, hours violations, and unionbusting by complicating the answer to a simple question: Who do you work for?

Historically, if two entities oversee aspects of someone’s work experience — such as wages, hours, and policies — either separately or together, they could be considered “joint employers,” which means they are both liable for labor violations. While this standard isn’t used very often, it can be a powerful tool for holding large corporations accountable.

Think contractors who work alongside direct employees, doing the same work at a site where the parent company controls hours and policies, the staffing company handles payroll and employee screening, and both have hiring and firing rights. If workers filed a complaint, a judge might determine that the worksite and staffing company are joint employers, depending on the specific facts of the case.

Now, after a failed attempt at narrowing the definition of a joint employer in Congress in 2017, the Trump administration is turning to the regulatory process to make it harder for workers to file claims that rely on this standard.

When Congress passed the Fair Labor Standards Act in 1937, it explicitly acknowledged that some workers, in disputes over wages, hours, and child labor practices, might be in a joint employer position. The question has been a subject of back and forth litigation and rulemaking because of the high stakes. The landmark Browning-Ferris case in 2015, which briefly established more protections for people making joint employer claims, allowed workers to leverage bigger wins and push for a larger culture of change. (Currently, a combination of litigation and rulemaking have the ruling’s status in flux.)

The Department of Labor recently announced a proposed rule to narrow the standards of who counts as a “joint employer” under the FLSA. It is extremely restrictive, requiring companies to meet a highly specific four-point test and disallowing consideration of other factors. For example, if a contract includes hiring and firing rights for the parent company but they aren’t exercised, the court couldn’t consider that, and the parties would fail the joint employer test; the parent company would not be liable for damages.

Much news coverage on the administration’s attempt has focused on what it means for fast food workers, who often work in franchises with a parent company and local owner. But the implications are even bigger, affecting millions of workers across the economy in the garment, agricultural, construction, hospitality, and building services industries, among others. It’s an especially important distinction for people caught in the dramatic increase in “contingent labor” in recent years.

It also affects third-party logistics (3PL) employees who handle outsourced elements of the supply chain such as packaging, delivery, warehouse maintenance, and more. Think forklift operators at factory warehouses and delivery drivers. 3PL is one of the biggest areas of growth, according to Tia Koonse, Legal and Policy Research Manager at the UCLA Labor Center. 86 percent of Fortune 500 companies are using third-party logistics agencies, outsourcing labor along with liabilities to increase profits. Nearly half of Google’s workforce, for example, is not directly employed by Google.

“I think that this [proposed rule] is aimed at workers who have spoken up, and the workers are not going to back down,” commented Jonnee Bentley, associate general counsel at SEIU. Fight for $15 worker-organizers have achieved significant victories across the U.S. in recent years; for example, there was a 2014 NLRB ruling in favor of McDonald’s workers who complained about retaliation for labor organizing.

As part of its proposed rule, the Department of Labor provided a handy breakdown of hypothetical examples for people wondering how different scenarios might be interpreted under the new rule, which reads more like a how-to on avoiding a joint employer determination. It’s also heavily stacked with examples from fast food franchises, although according to Catherine K. Ruckelshaus, general counsel at the National Employment Law Project, franchises haven’t been involved in joint employer disputes under the FLSA.

Curiously, though the rule touts cost savings for business, the only costs calculated in the current draft available for comment are $420 million in expenses associated with implementation. Under the Obama administration, franchise growth consistently outperformed the private sector, suggesting that increasing joint employer protections did not harm business growth.

I think that this is aimed at workers who have spoken up, and the workers are not going to back down.
– Jonnee Bentley

Undermining the way employers and courts interpret the FLSA isn’t the only way the Trump administration is using the rulemaking process to make it harder to bring joint employer claims. Last year, the NLRB announced a proposed rule, not yet finalized, to redefine the interpretation of the joint employer standard in the National Labor Relations Act, the legislation that surrounds worker organizing and labor disputes: If workers want to start a union, complain about unionbusting activity, or get support with the fight for a fair contract, they need the NLRB.

The NLRB wants to shift the joint employer definition to one that requires direct and immediate control of working conditions, moving away from broader Obama-era guidance that also accounted for “indirect control,” such as exerting guidance over business practices or providing software used to run a business.

The change would be good news for companies such as McDonald’s, as it would make it more likely that the corporation would not be considered a joint employer of franchise employees for the purpose of trying to unionize, and would have no obligation to come to the table to bargain. The franchise operator, meanwhile, would have limited options for meeting worker demands, because of price setting and other dictates set by the corporation. It should be noted that even in a case where franchise employees did manage to prove joint employer status and win a union contract, it wouldn’t automatically apply to other franchises — but the win could help workers organizing at other locations.

That these two proposals are similar is not a coincidence, Bentley said. “They’re trying to make it easier for big corporations to avoid liability by using contractors or franchisers.” The Obama-era guidance has enabled workers to hold franchises accountable for violations in the past.

“It’s part of the systematic dismantling of gains made in the previous administration,” said Koonse. “I feel the [Department of Labor] rule does not hold joint employers accountable in the way Congress intended,” she added, noting that the definition as proposed is so narrow that it may not withstand legal scrutiny.

The push through multiple venues to make it harder for workers to hold joint employers accountable is part of a larger pattern of attacks on labor rights, such as undermining overtime rules, cutting numbers of OSHA inspectors, and cutting billions of dollars in funding from the Black Lung Disability Trust, which supports coal miners living with black lung disease. One of Trump’s earliest cabinet appointments was to name fast-food giant Andrew Puzder secretary of labor — Puzder ended up withdrawing after outcry, but the initial nomination signaled a much more business-friendly approach to worker rights and protections. Working to unwind rulemaking from prior administrations and develop more restrictive interpretations of the law fulfills the president’s deregulation mandate, at a high cost to workers.

The day I started my new job as a cashier at Tedeschi Food Shops, I went in for my training feeling more hopeful than I had in a long time. I’d had the 1998 Buick my grandmother left behind when she died for a little over four months, so I finally had a better chance at making some extra money. I was already dreaming about everything I could do: buy my textbooks at the cheapest price in advance of the semester instead of relying on my scholarship money and the campus store, and be able to contribute next year by buying a set of new utensils for the on-campus apartment I was going to be sharing with three people.

But when my manager was giving me paperwork and collecting my forms of identification, I realized this job would be yet another situation where not having a bank account would be a problem.

Tedeschi Food Shops didn’t offer paper checks as a form of my payment, like my other jobs tutoring and grooming dogs had. There were two options: Sign up for direct deposit with a bank account, or have your paycheck put on a payroll debit card, which would charge me a fee of around $5 for every ATM transaction. The use of payroll cards is on the rise, particularly among freelancers and independent contractors. In 2016, 8.7 million people received payroll cards, compared to just 5.5 million employees receiving paper checks.

I was part of the 8.4 million households who are unbanked in the U.S. as of 2017, according to a Federal Deposit Insurance Corporation survey. I didn’t have an account because of former credit and account issues, like 14 percent of unbanked people; when I was 17, my dad and I purposefully overdrew my bank account by about $400 to cover basic necessities when he lost his job for a few months. We both thought we’d be able to pay it back fairly quickly, but we couldn’t, and my account closed.

People who are unbanked (or underbanked, meaning they have some access to financial services, but not everything they need) spend an average of 10 percent of their annual income just to access basic services like check cashing or credit. I had so little already, with barely any cash saved and an hourly job that paid Massachusetts minimum wage ($8 per hour at the time). I couldn’t afford to lose a portion of my paychecks to ATM fees.

Instead, I built up the nerve to talk to my girlfriend of four years and ask her if she’d let me use her bank account to get paid.

Like many people who grow up poor, my relationship to money impacted all my other relationships. I didn’t want to be financially dependent on my girlfriend. I wanted us to be able to make the decision to share our finances someday when we lived together and both felt we were ready. But I also didn’t have many other options; my dad had been without a bank account for longer than I had, and he was my main support system after my mom passed away.

My girlfriend said yes, and I put her account details down on my direct deposit form. I started picturing how I would feel when I got the money out of the ATM after being paid the following week. It was more money and more hours than I’d made at my on-campus tutoring job. I just wished that finances didn’t have to complicate my relationship all the time. I wanted to save up to take my girlfriend to Provincetown for her birthday that summer, but I didn’t want to share every single detail of my financial situation with her yet.

Sharing a bank account required an immense level of trust. I was putting all the money I was making into her account and relying on her to take it out of the ATM and give it to me. She had access to find out exactly how much I was making per paycheck and if I decided to make an online purchase with her permission, she could see every detail in her account statement.

It made me feel extremely vulnerable. I scrutinized a lot of my own purchases — would buying this make me seem irresponsible? Then I scrutinized my relationship — what if she no longer wanted to be in a relationship because she realized what a burden it was to date someone who was poor? What if I never climbed out of poverty like I hoped I would after college, and I had to rely on her and her bank account for the rest of our lives?

I'd rarely had good fortune when it came to finances.

And then, a few weeks after I started at Tedeschi, my girlfriend also got a job there. We both needed summer jobs to save between our junior and senior years of college, and it was the perfect fit for her, within walking distance of her house. The day she went in for her training, she got frustrating news: Because her bank account was already attached to my direct deposit, she couldn’t get paid the same way. She had to use a payroll debit card and lose the $5 every time she took her paycheck out of the ATM. We talked about seeing if I could switch and let her use her own account to get paid, but she said it seemed like more trouble than it was worth.

She was essentially being punished for doing me a favor.

All relationships have their challenges, but I felt the strain of our socioeconomic differences. There was a power dynamic underlying every interaction. I felt like I had to be the “perfect” poor person: I couldn’t make any reckless decisions, couldn’t spend my income on anything frivolous, had to work as hard as humanly possible to get over the poverty line. My girlfriend never made me feel lesser because my family had less money, but I felt it all the same.

When you’re poor, all your relationships are strained by your lack of money. I’d felt it in moments where my best friend had to drive me to Walmart when my dad and I didn’t have a car so I could get school supplies. Or when my friend printed my high school papers for me because we didn’t have a printer. When I had to turn down opportunities to go out with my friends because I knew I couldn’t afford dinner and a movie. When all my friends had brand new decked-out dorm rooms and mine was decorated in hand-me-downs and DIY collages I made for less than $10.

At the end of that summer, my girlfriend and I took our trip to Provincetown. We both took work off for the long weekend and headed out in my green Buick. The hotel I’d booked as a birthday gift to her was one of the cheapest I could find that was three stars or more, and it was squarely in between all the things we wanted to do on our trip.

On our way to the hotel, we stopped at a bank branch to deposit some money into my girlfriend’s account to use during our trip. A bank associate asked me if I wanted to open my own account. I told her I thought I wouldn’t be able to because of past account issues and she encouraged me to apply anyway.

After 15 minutes, I learned I was approved. It could have been because I’d been building credit with a Discover credit card for several months, because I paid my Sprint phone bill on time, or because I’d been under 18 when I overdrew my checking account. I wasn’t sure but didn’t question why the bank was allowing me to open a new account; I’d rarely had good fortune when it came to finances and I didn’t want to jinx what was a step in the right direction. After four years, I was able to open my own account again. I could buy gifts online for my girlfriend as a surprise without worrying she’d see the cost on her statement. I could make financial decisions that were visible only to me without worrying how they might impact someone else’s life.

I could have control over my own money: How I kept it, how I spent it, where it went.

Last month, the Trump administration introduced a new rule to cut Supplemental Nutrition Assistance Program (SNAP) benefits. The rule is geared towards so-called “able-bodied adults without dependents” who are unable to document 20 hours of work a week. When I heard the news, I double-checked my schedule, and I was in the clear: 35 hours that week. If I had missed a shift or two, then the outlook wouldn’t be so optimistic.

My fibromyalgia doesn’t care about my work schedule. It doesn’t time its flare-ups according to my current proximity to heating pads. Even more than Beamer, my service dog, fibromyalgia is the most constant presence in my life, on my mind at all hours of the day. In the morning, my joints could be so sore that I forgo my cup of coffee, because I can’t trust my grip and I don’t want to clean up another shattered mug. By the afternoon, those aches may give way to a fog that clouds my mind until any attempt at sustained concentration feels like running up a downward escalator — a lot of effort, but little payoff.

People with disabilities are supposed to be spared from the cuts. But in practice, many people with serious health conditions will be at risk of losing food assistance, because SNAP uses other government programs with an extremely limited definition of disability as proxies for disability status. So, I’m on the chopping block.

If I need to miss a shift because I woke up feeling particularly sore or because the afternoon fog rolled in early, the benefits I rely on to eat are threatened. Good day or bad, doctor’s appointment or not, I have to make sure I’m on time and ready, smiling at the customer service desk of the museum that is my work place.

Managing my condition is a full-time job, in addition to the job that actually pays me. To be able to show up for work, I have to go to three doctors’ appointments per week: two sessions of mental therapy and one session of occupational physical therapy. That doesn’t include the constant stream of other specialists who might have some new insight into my pain management: psychiatrists, rheumatologists, and pulmonologists.

Managing my condition is a full-time job.

All told, the copays add up to about $240 a month, just for the therapy sessions. That’s 12 times what I get from the Supplemental Nutrition Assistance Program. 20 bucks a month for food sounds trivial, but anyone who has ever really struggled knows that $20 can make or break you. For me, it’s the difference between an extra visit with a specialist or suffering until the next paycheck hits.

That doesn’t mean $20 is enough — like most of the strategies I use to treat my disease, SNAP is inadequate but essential. But the administration is putting it at risk with this new rule.

All of us have limited time and energy to spend in our 24 hours. But for some of us, to make it through requires more effort than others. In the three years since my diagnosis, I’ve come to terms with the fact that fibromyalgia isn’t going away. The appointments and the meds and Beamer don’t care about my work schedule because they make my schedule possible in the first place. With this latest rule, the Trump Administration is doing the opposite — they insist that I continuously prove that I’m building a life for myself. Why can’t I just build it?

Editor’s note: To leave a comment on the proposed regulation to limit states’ ability to waive work requirements, visit handsoffSNAP.org.

Toothpaste, medication, and bus fare. What do these have in common? For thousands of the poorest Pennsylvanians, there soon might be no way to afford them, or other basic necessities.

Next week, the Pennsylvania state legislature is scheduled to vote on whether to continue funding a program that helps around 6,600 residents make ends meet. The program, called General Assistance, is being targeted by the majority-Republican legislature as part of its bigger plan to dismantle an array of programs that help struggling Pennsylvanians get by. If they succeed, General Assistance will be eliminated effective July 1 of this year.

While it serves a relatively small population, General Assistance is a meager but critical lifeline for its participants. The benefit amount — up to $205 per month for an individual — might not seem like much, but the majority of participants are single adults who cannot work or have no other income whatsoever. Around 90 percent have disabilities. Participants include individuals in substance use disorder treatment, survivors of domestic violence, and adults caring for nonrelative children. And, importantly, beneficiaries are often ineligible for other public benefit programs because they don’t have dependents.

Many rely on General Assistance to serve as their only income while they await determinations on applications for Social Security disability benefits, which can take months and even years to process. Recipients indicate that they use the funds for essentials including rent, transportation, toiletries, and medical co-pays.

Recognizing the unique importance of General Assistance, Gov. Tom Wolf (D-PA) wants the program to continue to be funded at its current level of about $50 million — less than 2 percent of the state’s budget — in the coming fiscal year. But, predicting that the legislature will kill the program, he is also proposing to reinvest the money into the Pennsylvania Housing Affordability and Rehabilitation Enhancement Fund, or PHARE.

PHARE provides funding to build, rehabilitate, and support affordable housing throughout the state, some of which is allocated for households earning below 50 percent of area median income. Increasing housing affordability for low-income Pennsylvanians is extremely important, but Wolf’s office acknowledges that the two programs simply do not serve the same populations or purposes.

Eliminating General Assistance and reallocating its funds to PHARE will not mean that every current General Assistance participant receives access to affordable housing. A percentage would, but it would likely be a small one, based on the allocation of just $50 million and the fact that not all PHARE housing is for the lowest-income renters. Meanwhile, many of the General Assistance participants who don’t get housing would be left with no income.

Pitting these two essential programs against each other presents a false choice between basic necessities and housing development and affordability. Instead of robbing Peter to pay Paul, both programs should be adequately funded to help people meet housing and other basic needs.

Alas, there is good reason to expect the legislature will get its way. Six years ago, the Republican-controlled state legislature acted to eliminate General Assistance, but the Pennsylvania Supreme Court reinstated the program on a technicality, after finding that the legislature hadn’t followed certain required procedures. This time around, the legislature has learned from its mistake and knows exactly how to legally eliminate the program.

The Wolf administration still has time to push back. And for the well-being of the lowest-income Pennsylvanians, it should take up the fight.

Posting a selfie in a cute bikini on a beach in Hawaii to Instagram or sharing protest pics on Twitter shouldn’t be grounds for being denied disability benefits, but if an expansion of social media surveillance at the Social Security Administration goes through, that’s exactly what could happen.

An Instagram story from a low-pain day or a Facebook post with an old photo might be used against an applicant for disability benefits, a change from the status quo where the agency only looks at social media in cases of suspected fraud. Thanks to a New York Times story suggesting a tiny line item in the agency’s 2019 fiscal year budget overview will turn into a real policy, the disability community is very worried.

All this for an agency with a “fraud incidence rate that is a fraction of one percent.”

The proposed expansion of social media monitoring for the nearly 20 million Social Security Disability Insurance and Supplemental Security Income recipients would have several negative effects, among them that disability activists who organize and build community online may be hesitant to do so. It will also feed directly into myths about Social Security fraud that have been wildly overstated in media coverage, such as a 2017 Washington Post series or a 2013 NPR feature package that made it seem as though “undeserving” people were lining up for disability benefits. (The average monthly benefits are under $1,300; being on disability is hardly a profitable endeavor.)

Proposals like this one underscore the common belief that everyone applying for disability is fake until proven otherwise. “I hate the assumption that everyone’s lying just because they need help,” said Rachel Graves, a member of the chronic illness community who receives disability and private insurance coverage, and who is already very cautious about her online presence. Graves is well aware that social media is used to police disabled people online by the government and insurance companies, as well as the general public, who are all seeking out disabled people who don’t “look sick.”

In response to the news, Mila Johns, who has Ehlers-Danlos Syndrome, a connective tissue disorder, deleted her Facebook account and plans to scale back on Twitter: “It seemed like too big of a risk to take by continuing to engage in social media. Because we don’t know how it’s going to be used.” Johns relies on communities found through sites like Facebook and Twitter to connect with people who share her diagnosis. “[Social media is] a lifeline for so many people,” she said, but she’s preparing an application for disability benefits, and she’s worried about what examiners might find, and judge.

The internet is valuable for outreach and advocacy, but also activism. Online organizers have used social media to fight attacks on the Affordable Care Act, organize in defense of the Americans with Disabilities Act, and engage in solidarity actions with other marginalized communities. Disabled advocates such as Imani Barbarin, creator of hashtags such as #AbledsAreWeird and #ThingsDisabledPeopleKnow, and Alice Wong, founder of the Disability Visibility Project and one of the co-partners of #CripTheVote, rely on social media for their work.

Images of disabled protesters went viral in 2017 during the fight to preserve the Affordable Care Act. Those same protesters now get to worry about whether those pictures will be used against them to deny or revoke disability benefits; if you’re well enough to occupy the halls of Congress, surely you’re not “really disabled.”

The agency already has an entire trained investigative division that focuses on preventing fraud before it even happens, in addition to following up on complaints about current beneficiaries. It also uses predictive analytics software to flag suspicious activity among both applicants for and current recipients of disability benefits. (Like other uses of predictive algorithms, this has dangerous implications, requiring applicants and recipients to submit to the surveillance state’s collection and use of their data. Algorithmic bias is also a significant concern.)

Now, in addition, the new proposal would allow thousands of front-line “disability adjudicators” all across the country to conduct their own fraud investigations using social media data. These are the staff charged with determining whether a claimant meets the agency’s stringent criteria for disability benefits.

It seemed like too big of a risk to take by continuing to engage in social media.
– Mila Johns

On average, they are not very accurate.

In 2016, disability adjudicators approved 33 percent of initial disability applications and denied the other 67 percent. Claimants whose applications are denied have the right to appeal and have their case heard by an administrative law judge. After waiting one to two years to have their appeals decided, 46 percent of claimants are ultimately found to be disabled by Social Security.

In other words, nearly half of the people whom disability adjudicators rule as not disabled are actually determined to be disabled when they have their day before a judge.

In this climate, it’s easy to understand why disabled people might be afraid, and the consequences of curtailing social media engagement can be immediate and painful. “It is so isolating being really sick, especially when you have something unusual enough that you don’t know anyone else who has it. To find someone like you can make you feel less lonely,” said Graves.

The proposal also aligns with a long history of claiming that programs like SSDI and SSI are rife with “fraud.” For those concerned about fraudulent applications, the Social Security Administration maintains a fraud hotline and encourages not only workers, but also law enforcement and members of the general public, to report suspected disability fraud, in a “see something, say something” approach that encourages people to inform on each other.

This is the dangerous crux of the proposal: It will have a silencing effect on disability advocates at a time when they have won several high-profile victories with the assistance of online organizing, such as helping to prevent the repeal of the Affordable Care Act. Expanding the use of social media in disability determinations could become punitive in nature, with poorly-trained adjudicators dealing with large caseloads making snap judgments about applicants, particularly those with outspoken political leanings. Disability activists who don’t “look disabled” or have variable experiences of disability, such as part-time wheelchair users, could pay a high price for leading public lives.

The proposal can be operationalized administratively, without Congressional action, though Sens. Sherrod Brown (D-OH) and Bob Casey (D-PA) have expressed concerns about it. But it will make the internet less safe — especially for people like Johns who are primarily or entirely homebound and use it as a vital tool for participating in society. And it will make organizing harder for a fractured community that’s currently relying on the internet to help with the fight against dangerous, disablist policy proposals on the state and federal level.

The Trump Administration Is Making It Harder for Workers to Hold Big Corporations Accountable

I Couldn’t Get a Bank Account. My Girlfriend Paid the Price for Helping Out.

I’m Disabled. The Trump Administration’s New Rule Could Take My SNAP Anyway.

Pennsylvania Plans Vote on Cutting Assistance for Its Poorest Residents

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