March 20, 2023
The Honorable Joseph R. Biden
President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear President Biden:
The Department of Labor (“Department” or “DoL”) is considering a regulation that would make substantive changes to the guidance governing worker classification under the Fair Labor Standards Act. Given that the current acting Secretary and nominee, Julie Su, has a history of supporting efforts that undercut the availability of independent work, I write on behalf of Flex requesting that:
The Department delay action on this proposal until the Senate confirms a Secretary of Labor; and
Ms. Su explain in detail, up to and through the Senate confirmation process, her plans for finalizing this potential regulation in a manner that protects independent work and avoids the economic turmoil California experienced when she oversaw worker classification as that state’s Labor Secretary.
Flex members efficiently and effectively provide matching services to customers and businesses looking for access to delivery or transportation, offer flexible earning opportunities to workers, and support economic growth in communities across the United States. Unfortunately, the DoL is considering a variety of proposals that could undercut the availability of independent jobs for millions of Americans, impacting families and communities throughout this country.
Given these stakes and the potential for any negatively revised final rule to have far-reaching impact at a time of economic uncertainty, the Department should not finalize its worker classification proposal before having a permanent Secretary who has been confirmed by the U.S. Senate.
We are also concerned that the Administration’s current nominee to lead the Department, Ms. Su: (1) does not fully appreciate the potential impact of policies that undermine independent work on both workers—who appreciate the flexibility, in particular— and those that depend on the services they provide, and (2) has a record indicating an oppositional approach to policymaking that carries real implications as she seeks to be elevated to serve as the Department’s primary policymaker.
App-based platforms have transformed the landscape of today’s workforce. The reality is that millions of app-based earners have chosen a new economic path where people have the means to determine where, when, how often—and with which platforms—they want to earn income. These opportunities have increased the earning power of 23 million people and have brought a significant number of workers off the economic sidelines.
As evidenced by a recent analysis, a national policy narrowing opportunities for independent work across the economy would displace 1.5 million workers—those unable to work as traditional employees—from the labor force, costing an estimated $31.4 billion in earnings. Policies that would restrict workers’ opportunity to combat inflation and build wealth would be irresponsible and rob millions of Americans of their economic agency.
As California’s Secretary of Labor, Ms. Su was significantly involved in the state’s AB 5 legislation, which wreaked havoc across multiple industries. If the law had not been eventually amended by ~60% of California voters in a ballot measure, the statute could have undercut more than a million people who choose flexible work. Ms. Su should explain to the American people how she plans to avoid similar policies as head of the DoL, which could lead to upheaval that is national in scope.
Furthermore, the next Labor Secretary should enact policies that enable workers and businesses to thrive. Cultivating a track record of treating all stakeholders fairly and all policy decisions with an open mind should be prerequisites to serve as the Department’s leader. Yet the views Ms. Su espoused—and policy actions she took—towards app-based platform work in California have the potential to drastically undermine the earning power and economic choices of 23 million American workers—parents, veterans, students, caregivers and many others.
To that end, we ask that throughout the Senate Committee process Ms. Su clearly articulates and distinguishes her previous California policy priorities from her potential priorities for the U.S. DoL, as those she pursued during her tenure as California Secretary of Labor, if enacted at the federal level, would harm this diverse group of independent entrepreneurs and so that stakeholders can properly evaluate their position on her nomination.