The deadline for public comments regarding two proposed Biden administration workplace rules ended this week, with conservatives submitting well more than half of the remarks and letting their opposition be known.
If implemented, the new rules could restrict independent contracting, which would force some freelancers to reclassify as employees, and broaden the definition of joint employment, making it harder to own and operate franchise businesses.
Because these rules are being proposed by executive branch agencies, they do not go through rounds of debate and votes in Congress. However, under the 1946 Administrative Procedures Act, they must go through a public comment period to receive feedback before being implemented.
That period ended within the last week for both rules, with Heritage Action, the Heritage Foundation’s advocacy arm, helping solicit thousands of comments from voters.
The group facilitated the submission of more than 7,550 comments on the franchise rule, which was more than two-thirds of the grand total, and more than 9,000 comments on the independent contractor rule.
“The Biden administration has used and will continue to use the rulemaking process through its agencies as a way to go around Congress,” said Jessica Anderson, the group’s executive director. “We have engaged with grassroots activists this year on the rulemaking process, encouraging them to make comments against the administration.”
Once received, those comments must be taken into account by the federal government before the rules go into effect and may result in them being altered or even eliminated, depending on the volume and force of feedback. The administration needs to go through each comment and answer any substantive point raised.
The Biden administration can continue to implement the rule or, if there is enough pushback, can delay or not implement it. Even if implemented, it can be challenged in court.
The comments come from concerned residents across the country, with Heritage Action setting up a website to make submitting comments easier.
Anderson thinks Biden will attempt even more changes in 2023 and 2024 since he’ll be facing a divided Congress, in which case the group will repeat its efforts.
The independent contractor rule proposed by the Department of Labor could affect more than 57 million people who work as freelance or “gig” workers, such as truck drivers, graphic designers, accountants, or others who are self-employed. Proponents of the rule argue that many workers classified as independent contractors should rightfully be employees, but business groups say freelancing allows for more flexibility and freedom, a big factor for many who choose self-employment.
“Please don’t institute this rule as California has,” reads one comment opposing the contractor rule. “My niece lives out there and it effected her negatively. I am also an independent contractor, and choose this method of earning a living in order to maximize my freedom of to choose my clients, choose my schedule, and choose many other aspects of my work life.”
The second rule, proposed by the National Labor Relations Board, would make it more difficult to run businesses as a franchise.
The rule would have many franchise employees reclassified as employees of the franchise’s parent company. Yet franchise owners say this would make it more difficult or even impossible to operate their businesses. The move could also make it easier for workers to form unions, which are a key constituency of Biden.
“I’m opposed to taking away control from small business owners and handing it to a central corporation,” reads a comment regarding the franchise rule. “It was the local, small business owner who took the risk to open the business. They should retain control over how to run it and who they hire. You are not called on as the president to assume this type of role.”
Anderson said both of the new rules could make it harder for people to become entrepreneurs and would disproportionately affect women, who often work part-time while also caring for children.
Both proposals seek to tip the scales in favor of classifying workers as employees rather than independent contractors, fulfilling a goal of Biden’s labor-friendly White House that it says would prevent the “misclassification” of workers.
“While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers,” Secretary of Labor Marty Walsh said in a release when the rule was announced Oct. 11.
While the administration is not obligated to make any policy changes based on comments, they do have the potential to sway matters. Not only that, the lengthy process of sifting through and taking into account thousands of comments can slow down the process of implementing new rules.
“It throws sand in the gears so that they can’t move forward with these rules as swiftly as they want,” said Anderson. “This way, the Biden administration can’t just change our daily lives overnight without any accountability to the American people.”
The Administrative Procedures Act’s public comment requirement has gotten more attention lately as more governing is done by executive orders and executive branch agencies created by Congress. The Biden administration has already drawn several complaints of circumventing the act in announcing new policies, including the federal mask mandate and the recently announced student loans forgiveness program.