WASHINGTON—Corporate “judge-shopping” in federal courts, once again in rural eastern Texas, resulted in an OK of a Donald Trump anti-worker rule—one which Democratic President Joe Biden announced he would yank. Now two right-wing House Republicans demand he enforce it, or explain why not.
The contest is over defining which workers are “independent contractors,” who legally can’t unionize, while “employees” can. Contractors must pay both their and their bosses’ share of Social Security and Medicare payroll taxes. The contractors also can’t get workers comp or jobless benefits, either.
All that enhances corporate profits at the expense of workers, so their lobbies cheered when Republican former Oval Office occupant Trump, in a last-minute decision on Jan. 7, 2021, expanded the definition of which workers could be reclassified as “independent contractors.” Trump’s DOL adopted an “economic realities test with an emphasis on a worker’s level of control over his or her work and entrepreneurial opportunity for profit or loss.”
Just two months later, Biden yanked Trump’s rewrite. So two corporate lobbies, the “Coalition for Workforce Innovation,” a front group for retailers, service, and tech companies who advocate to “empower individuals who choose non-traditional work arrangements,” and the anti-union Associated Builders and Contractors, went judge-shopping to find a friendly federal jurist who would toss out Biden’s reversal.
As corporate interests have in other cases covering federal rules, they turned to the U.S. District Court for Eastern Texas, in rural Beaumont. It has a 6-5 majority of Republican-named judges, including four Trump nominated. The lobbies wound up in front of Judge Marcia Crone, a George W. Bush appointee. No matter.
On March 14, she ruled for Trump and the corporate interests, and against Biden. She restored Trump’s dictate, along with two Trump Labor Department “guidance letters” on the rule, sent to owners of food plants and trucking firms. The judge said Biden’s reversal confuses “the regulated parties,” i.e. the corporate class, and was “arbitrary and capricious,” to boot.
Biden’s DOL hasn’t decided whether to appeal her ruling, yet. The next judicial level up is the Trump-jurist-dominated appeals court in New Orleans. But right-wing Reps. Fred Keller, R-Pa., and Virginia Foxx, R-N.C., want Biden’s Labor Department to enforce Trump’s rule against the workers, now—or explain in two weeks why it hasn’t. Foxx also once questioned whether unions are legal.
The demand is notable, not just because of the judge’s ruling, but because Foxx signed it. She once chaired the House Education and Labor Committee and would do so again if the GOP takes control of Congress this November. Both demanded Biden Administration Labor Secretary Marty Walsh again let firms misclassify workers as independent contractors.
That misclassification could affect 1.9 million workers, the two said. But that number may be low. It doesn’t count workers whom firms would reclassify if Trump’s rule stands.
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