Punching In: Labor Agency Leading Effort to Measure Gig Economy

Monday morning musings for workplace watchers.

Sizing Up the Gig Workforce|OSHA Whistleblower Investigations

Rebecca Rainey: The non-partisan Government Accountability Office says the federal government needs to do a better job of tracking “nonstandard and contract work arrangements” so lawmakers can make better decisions on policies impacting those working in the gig economy. And the US Labor Department has agreed to lead the effort.

Federal regulators and outside analysts have struggled for years to wrap their arms around the true size of the gig or contingent workforce, which GAO defines as those engaged in “work that is not permanent, year-round employment with predictable full-time hours.”

The Bureau of Labor Statistics tried to capture the number of workers in “electronically-mediated” jobs through a survey in 2017, but later said it would reassess the findings after concluding that its questions yielded “false positives,” among other issues.

Now, GAO has tasked the DOL with setting up a “mechanism” to bring together agencies that collect workforce data and create a more accurate and complete measure of the workers participating in this segment of the economy. The project will run through the BLS.

A DOL spokesperson confirmed via email that “the department and the Bureau of Labor Statistics are supportive of the recommendation. BLS is currently working to define next steps.”

Currently, data on workers in temporary work arrangements are “fragmented” across seven different agencies, GAO officials said in the Dec. 12 report. Estimates of how many workers are in such arrangements “range from less than 5 percent to over 30 percent of the total workforce,” according to the agency.

Whether or not the BLS will get the number right this time around is yet to be seen, but a better measure of this sector could be consequential enough to change how unions target their spending to organize that labor force, as well as provide more ammunition for lobbyists to push lawmakers for or against regulations in this area.

Whether or not these workers should be considered “independent contractors” who are in business for themselves or “employees” who are protected under federal labor laws has emerged as one of the most contentious debates in the modern employment landscape.

Industries that rely on independent contractors to provide or deliver their services, like the on-demand app-based delivery and rideshare sectors, as well as construction and trucking, are closely watching for legal changes.

The DOL is currently in the process of finalizing a rule that would generally make it harder for employers to classify workers as independent contractors under the Fair Labor Standards Act.

The law, which requires employers pay a minimum wage and overtime, among other protections, only applies to employees. The rule, which is under review at the Office of Management and Budget, is expected to be finalized by April, according to the latest regulatory agenda.

GAO noted that there are several consequences to misclassifying a worker as an independent contractor when they should be a full employee under the law, including loss of access to federal workforce benefits and some anti-discrimination protections, as well as certain tax implications.

READ MORE:

• Labor Department Moves To Change Worker Classification Rule (3)
• Workers Divide On Contractor Status, Complicating Biden Approach
• Gig Economy May See Tougher Contractor Rule After Court Victory

Doug Parker, assistant secretary of labor for occupational safety and health, speaks during a Senate hearing on May 27, 2021.

Photographer: Stefani Reynolds/Bloomberg via Getty Images

Bruce Rolfsen: While most think of OSHA for workplace safety enforcement and rulemaking, the agency’s lesser-known whistleblower program continues to work to better investigate a wide range of allegations from financial fraud to safe drinking water.

“We have historically had a whistleblower program—I think virtually since its inception—that has had a caseload that was unsustainable and significantly interfered with its ability to be effective,” OSHA Assistant Secretary Doug Parker said recently.

If a worker in a private industry believes their employer retaliated against them for complaining about practices that violated federal law—even practices not related to workplace safety—the worker can file a complaint with the Directorate of Whistleblower Protection Programs seeking reinstatement and financial compensation.

But the US Occupational Safety and Health Administration directorate has been hampered by low staffing levels, which contribute to long wait times for workers to learn the outcomes of OSHA whistleblower investigations.

That issue appears to be improving.

OSHA ended fiscal year 2023 with 105 investigators, nine fewer than the end of fiscal year 2022, but about a 27% increase over the staffing at the close of fiscal year 2021, agency data show.

The staffing boost and other changes has led to the agency taking fewer days to complete cases, decreasing the average length of an investigation from 332 days in 2020 to 197 days as of October, Parker said.

The agency also has a pilot program to speed up review of complaints to determine whether the allegations can be handled under the 25 whistleblower laws OSHA enforces, Parker said.

And there is now a “tiger team” of experienced investigators to review older cases to either resolve them or determine if cases could be refiled in federal court by the worker and a private attorney, he added.

These efforts come as there’s been no reduction in the number of whistleblower complaints that lead to full OSHA investigations.

For fiscal 2023, the whistleblower directorate docketed 3,243 new cases, up 15% from 2022. In 2023, 71% of the cases docketed involved alleged violations of the Occupational Safety and Health Act.

The directorate completed 3,649 cases in 2023, up 29% from 2022. Of those cases, 868 were closed with settlements between the aggrieved worker and their employer, and 23 additional cases were recommended for legal action by Labor Department attorneys.

The most common outcome of the complaints was a determination to dismiss the case, often because there wasn’t a clear violation, with 2,154 cases dismissed. The remaining 604 cases were either withdrawn by the worker or moved by the worker and their private attorneys to federal court.

We’re punching out and taking a break for the holidays. Daily Labor Report subscribers, we’ll return here and to your inboxes on Monday, Jan. 8, 2024. Until then, please check in for updates and feel free to reach out to us.