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You're putting a lot of weight on the word basically in your first sentence - the reality is that gig workers have characteristics that clearly fall under the classification of employees and others that clearly fall under the classification of contractors.

The problem with your argument is that because the law is ambiguous with regard to this situation, the labor secretary is effectively making law by choosing a particular interpretation of the law.

Though to be clear, I agree with you 100% that this is because Congress is just perpetually failing America through corruption, selfishness, etc., and that failure puts the labor secretary in an unenviable position of having to enforce laws that don't really work for the situation.

> The problem with your argument is that because the law is ambiguous with regard to this situation, the labor secretary is effectively making law by choosing a particular interpretation of the law.

As a member of the Executive branch, that seems to be his job, yes.

[IANAL]

My understanding is that if a worker has any characteristic of an employee, they are an employee. Any of several criteria are sufficient and only one of them is necessary.

In the bigger picture, Congress passes laws and delegates authority to a branch of government to establish rules and regulations using a process complying with other statutes that dictate how rules and regulations become binding.

Essentially, in the US at all levels -- Federal, State, and Local -- there are two types of legal requirements. Statutes and rules/regulations. The statute is the what. Rules and regulations are the implementation details...ok, there's actually a third parallel part which is legal precedent established by the courts.

Anyway, Congress delegates authority to executive agencies so that it can focus on other things and not have to micro-mange each tiny detail of everything under the sun.

I am also not a lawyer, but my understanding is that the system is not clear in the way that you are describing it.

As to "Anyway, Congress delegates authority to executive agencies so that it can focus on other things and not have to micro-mange each tiny detail of everything under the sun." - each tiny detail? This is a case of classifying millions of workers. We're not talking about a tiny detail, we're talking about something that is immensely important both to all the people affected by it as well as all the companies that have to operate under these labor laws. This isn't Congress delegating away the details, it's them failing for an extended period of time to address an absolute enormous and critical issue in the labor market.

So are you saying the Labor Secretary should classify them as independent contractors?

In terms of scale the Department of Labor classifies all workers. Should Congress classify each worker individually?

Were previous Labor Secretaries out of line for classifying the workers as contractors?

If you accept that the law is ambiguous and that the current Secretary of Labor is effectively making law by choosing an interpretation, you must also accept that the existing regulatory structure also derives from a choice made by a previous Secretary of Labor who effectively made law by so doing so.

Your argument does not provide any basis for preferring one interpretation over another.

That's because it's not an argument about which interpretation is preferable. The parent comment said it is not the secretary's job to rewrite the law (which implies that the secretary is not making law), and my argument is that that the secretary is indeed writing law.

In terms of preference, mine is not for one labor secretary's policy over another (I mean, I have a preference there, but it's beside the point here). My argument is that the labor secretary is making law here, and that is a bad thing because it is the job of Congress to make laws, which they are utterly failing to do.

It is the Secretary's job to (have their department) write regulations. Regulations are the implementation of the specification laid out in law. When the law is ambiguous, regulators have to choose an interpretation.

Congressional paralysis is definitely a problem, but until we have a major change in either Senate rules or political paradigm, we not see any improvement on that front.

In the UK apparently there are 3 types. The Economist wrote on the Uber case in UK:

“Employees” gain access to the full gamut of employment-law protections; “workers” get some protections but can be dismissed at will; the self-employed are taxed more lightly but receive few legal rights.

The Surpreme court ruled that Uber drivers are workers and not self-employed.

In most states in the U.S. all employees can be terminated at will. It is generally called "right to work" (yes... it is a questionable name). So essentially that first category does not exist in the U.S. (outside of a union where it gets tricky). So the Labor Secretary's decision amounts to the same decision.

And self-employed here generally are not taxed less, rather about the same (details vary), but have to do the taxation themselves.

I should note that you still can be fired illegally, for example surrounding harassment or protected status (gender, race, etc...).

>Lots of issues in modern US business arise from laziness / stupidity / corruption / uselessness of Congress.

And by extension lots of issues in Congress arise from laziness / stupidity / corruption / uselesssness of the electorate that put them there. Invest heavily in education and revisit in a few generations.

What kind of education?

The kind that doesn't result in an intellectual race to the bottom as we're witnessing today, where people eat tide pods, purposefully hasten pandemic spread, and bottles of Windex have to have legal disclaimers like "do not spray directly into eyes".

Easier said than done I suspect.

> Invest heavily in education and revisit in a few generations

It is a persistent myth that the US does not invest in education. Not only is the dollars per student spent in the US competitive, it exceeds the majority of European nations spending per student by a large margin.

"In 2015, the United States spent approximately $12,800 per student on elementary and secondary education. That is over 35% more than the OECD country average of $9,500. At the post-secondary level, the United States spent approximately $30,000 per student, which was 93% higher than the average of OECD countries ($16,100)."

https://www.investopedia.com/ask/answers/020915/what-country...

The question is what part of those dollars really buy quality and what part just ends in pockets of well-connected interest groups.

I see this question only rarely asked. Too many people seem to think that shoveling extra money on X will get you better results almost automatically. No, it won't, corruption and special interests can capture that extra value unless the investor is careful.

Now it is true that underfinancing will get you worse results, but the opposite just does not hold.

Invest, not spend. You'll see plenty of school districts which receive tons of money but at the classroom level teachers are barely paid and kids have no supplies.

Money is going somewhere but most of it isn't into the actual education.

I think the bigger problem is the lack of citizen representation. Individual legislators are servicing an absolutely huge number of constituents, which means that their elections cover absolutely massive amounts of people, necessitating massive amounts of money for campaigns. Which means that the influence comes from donors, as they are the ones who enable reelection.

It also means that outside money can lead to successful primaries of otherwise popular legislators, if the legislator doesn't toe the line required. There used to be many Republicans that not only publicly agreed that climate change is a real, human-caused, phenomenon and that also proposed action to solve the problem. After a few legislators got primaried out of their seats, this position is no longer allowed at all in public statements by Republicans, because most legislators are too scared to risk being primaried.

Increasing the House of Representatives by ten fold or more might help.

Getting rid of many of the procedures that prevent votes from happening would probably help too.

And of course, overturning Citizens United...

"Increasing the House of Representatives by ten fold or more might help."

While you would end up with much more representatives - and in theory more representation - each individual rep would become much less influential. I think expanding the house to be thousands of members large would also make deliberations much more difficult and shallow as a result. I have no idea how parliamentary procedure would work with thousands of interested parties. But I do acknowledge that it is do-able.

That being said, I am in favor of increasing the size of the house, but only by about 100 seats or so. I'd also want term limits in order to facilitate more turnover for district seats. But that's a separate debate.

The House of Reps has been frozen since 1929 with the Reapportionment Act, we were originally suppose to add new electors/reps with every census and sometimes sooner if population change is fast enough. It is also the reason why some small states have slightly more power in the House of Reps, the lack of new Reps has made their fair share of Reps drop below the minimum number of Reps. With more Reps overall, their share rises and surpasses the minimum number, fixing that particular problem.

It's not the labor secretary's job to rewrite the law

This.

Sometimes I feel like the entire nation needs to go back and revisit our civics books. The job of the Labor Secretary is to make certain that federal labor laws are followed. If you want changes to federal labor law, it does you no good to demand them of the Labor Secretary. Call your congressperson and your senator. Even better, vote for more qualified congresspeople and senators.

This is a republic. Which means that ultimately, the labor laws are far more our fault than the fault of the Labor Secretary.

>Which means that ultimately, the labor laws are far more our fault than the fault of the Labor Secretary.

It also doesn't really matter what the Federal law is or Labor Secretary does/says, worker agreements are governed by State law, and their are 50 States with similar, but not identical legal standards defining employees vs independent contractors. In some cases you may be defined as an employee at the State level but Independent Contractor for purposes of the Federal level (say the IRS Code/Federal Taxes). Even within a single State one agency say unemployment office was classify you as employee and another such as workers comp classifies you as independent contractor.

> Even better, vote for more qualified congresspeople and senators

The problem with this comment (and others like it) is the presupposition that the problem is that people are not voting "correctly", because if only they did, all the problems would be solved.

But that glosses over a very large number of problems, some of which are deeply systematic, at which point questions like "whose job is it really to fix these issues anyways" may in fact deserve answers that are more out-of-the-box than "the republican democratic system works as intended, so the problem must be elsewhere".

>But that glosses over a very large number of problems, some of which are deeply systematic, at which point questions like "whose job is it really to fix these issues anyways" may in fact deserve answers that are more out-of-the-box than "the republican democratic system works as intended, so the problem must be elsewhere".

This glosses over the fact that enough of the population disagrees with your assessment of the problem and proposed solutions that there is no consensus and that is why your problems are not being solved in the way that you want. In fact, that is almost always the case.

People feel that the thresholds of consensus required in republican processes get in the way of their plans only when they fail to persuade others. Then they start looking for more authoritarian solutions, such as having party-bureaucrats make laws by fiat.

> enough of the population disagrees with your assessment of the problem and proposed solutions that there is no consensus and that is why your problems are not being solved in the way that you want.

Yes, this is part of it, but it goes even deeper than that. For example, California government passed AB-5, and then later popular ballot passed prop 22, which essentially goes contrary to AB-5. Does that suggest that leadership is out of touch with the electorate? Maybe. The fact that numerous pages of exceptions had to be carved out in AB-5 in the first place (and it's still criticized even after that) also indicates that the legislation wasn't very well thought out to begin with.

If you think in terms of a software engineering organization, it would seem crazy to take bug reports and just blindly do whatever the tickets with largest number of CAPS LOCK words says. But governments often do exactly that: they take some top-of-mind idea and just go with it, without paying heed to any sort of expert research, leaving implementation details to be determined by others "lesser" offices of government, and without care for the repercussions of rolling out such policies. It's the equivalent of pushing the "release" button in your enterprise software, cross your fingers and hope for the best, without any observability infrastructure and without a rollback plan if everything breaks.

> People feel that the thresholds of consensus required in republican processes get in the way of their plans only when they fail to persuade others. Then they start looking for more authoritarian solutions

This is also true, and it's definitely a touchy subject. On one hand, global consensus seems "fairest", but is it really the fairest if the vast majority of people are not affected by a decision (or they are affected to different degrees depending on various factors)? What of their expertise in the subject matter? Many problems do have solutions that align with common sense, but many others require solutions that are counterintuitive, but that can only be proven to be more effective with hard research. It's a difficult line to thread, and I feel that the status quo favors popularity more than science when it comes to decision making.

> For example, California government passed AB-5, and then later popular ballot passed prop 22, which essentially goes contrary to AB-5. Does that suggest that leadership is out of touch with the electorate?

The idea of representative government is you outsource decision making to people, not that you hire people to always do what the majority wants. That is the justification for a ballot initiative override. Not necessarily saying that ballot overrides of legislative actions are good structure -- there are pros and cons. But in the case of AB-5, that was clearly an out-of-touch legislative body taking some very extreme measures that were more radical than the state population wanted. That is a common thing when you have one-party states like CA, so in the current CA landscape ballot initiatives are a good safety check on what is a one party legislature controlled by party insiders.

> If you think in terms of a software engineering organization, it would seem crazy to take bug reports and just blindly do whatever the tickets with largest number of CAPS LOCK words says. But governments often do exactly that

In my experience in the corporate world, working from everything from non-profits to start ups to DJIA member companies, I find corporate decision making to be equally random and opaque. They are just random in different ways. In the corporate world, if you can find an executive sponsor and frame something the right way, you can convince them to follow a road of sheer madness. In government, if you can convince a politician that something is trendy or a cheap way of getting votes, they will commit huge blunders. If you can convince them that something is a moral imperative, they will commit unspeakable atrocities.

> This is also true, and it's definitely a touchy subject. On one hand, global consensus seems "fairest", but is it really the fairest if the vast majority of people are not affected by a decision (or they are affected to different degrees depending on various factors)?

Indeed a tough subject. The way I think about is this. If you are in the business world and you are leading a team of 5 engineers, who are trying to make a decision. Let's say 3 strongly believe in A. 2 Strongly believe in B and are strongly opposed to A. Do you say "majority rules"? Unlikely. You will try to find consensus. Consensus could be something like 60%A and 40%B. This consensus gathering process is why businesses often do crazy things, but they don't know a better way as pissing off 40% of your team is something you need to avoid. The 2 people can quit -- they can transfer to another team. So ultimately you do need to gather consensus rather than search for 50% +1 in making decisions within a team.

But a society is like that team. It requires more than 50% +1, otherwise you will find groups seceeding. One way of addressing this is to put in various roadblocks to require more than 50%. Say you need 2/3. Then people have to negotiate. If you want to do something 1/3 hates, then you can do it if you give them something in return. You bargain and you reach a consensus where everyone gets some of what they want, even if they don't like it. But then you might reach a situation where the society is split and simply can't come to a consensus because there are moral issues at stake that they are not willing to compromise on. Then your option is federalism. You break the society up into two groups and let each one make rules for themselves. Within each federalist group you have the super majority requirement again, but because they have shared values, they can reach that super majority.

All of this stuff was debated long ago in 18th-19th C France and England, and many very smart people looked at all these issues, which is why we have this weird federalist form of government in the US where you have both a senate and a house and it's really hard to get anything passed into law unless you have both a geographic and population supermajority on your side. But as the nation splits into two camps that view each other as basically evil, unreedemable, hopelessly foolish people, you are finding more and more gridlock and more and more appeals to Federalism. California wants to run their own climate policy? Fine, let them. Oklahoma wants fracking and free gasoline to everyone? Fine, let them. If you don't, the days of the republic are numbered.

> I find corporate decision making to be equally random and opaque

That's fair, but it's still madness :)

> ultimately you do need to gather consensus

I think consensus is just one form of conflict resolution. Compromise is another, for example. When we have a scenario of 5 people, 3 pro-X and 2 pro-Y, one could argue that are actually three choices: X, Y and the status quo, where an impasse between X and Y is functionally equivalent to everyone being pro-status-quo. Rephrasing in terms of status quo vs something else might help in understanding where X and Y overlap and where they differ and might lead to more productive open-ended discussions than a discussion that is solely adversarial between X and Y.

I don't believe it's necessarily possible to reach consensus in all cases. For example, the issue of abortion doesn't seem like one where either side is willing to let go. But I do believe that it's possible to reach a compromise in many cases (for example, pro-life proponents might be willing to concede that a anencephalic fetus posing life threatening risk to the mother is an acceptable case, while still believing that normal unplanned pregnancies should be taken responsibility for).

There's also always a possibility of a fourth choice Z, for example a policy from a different country (e.g. Portugal's handling of drug abuse being seen as a medical problem, rather than limiting the discussion to one solely about the spectrum of criminal severity). And there's yet other ways to handle conflicts, such as the iron fist approach that China uses (which some might argue was effective at handling covid, for example, questionable as it may be in other areas such as freedom of speech).

My take away is mostly that even if things are as they are because of something that was settled by scholars centuries ago, it still behooves us to revisit different ideas, ideologies and approaches to tackle today's problems, rather than ignoring or not understanding the weaknesses of the status quo processes.

I'm not OP but compromise is only a choice if both sides see that as being better than the status quo. You are right that Status Quo is the third choice but it seems both sides of lots of issues prefer that than compromise because for a lot of these moral issues "compromise" is a step in a worse direction. I'd guess largely because of "slippery slope" type of fears.

For issues that can't be compromised, federalism is the solution. However this falls apart for issues where there are real (or perceived) externalities. If you are anti-abortion because of your moral framework, its unlikely you see allowing another community to do it as acceptable. The same as if you are worried about climate change, you don't want fracking in places you don't live.

Excellent points

Well, yes and no. If you mean the labor sec shouldn't arbitrarily decide not to enforce certain laws based on ideology, I agree completely.

But if you think the labor sec should merely concern themself with robotically enforcing the most literal meaning of the labor code, I think that's dubious as well. They should be thinking more big picture than that, like about whether the laws, when enforced, achieve their ostensible purpose. In this case, I would think it means saying, "well, if we want to do right by workers, I recommend we refactor the labor system like so...". That is, pass that on to Congress and the administration.

That, I think, should be a higher priority than fighting ever harder to be technically correct on an increasingly arcane distinction.

"well, if we want to do right by workers, I recommend we refactor the labor system like so...". That is, pass that on to Congress

At which point congress is free to ignore the secretary. Ultimate authority always lies with congress. We can change that, assuming we want to change the Constitution. But today, congress is in charge of making laws. It is not in the remit of the Secretary to short circuit the Constitutional order. The best the secretary can do is, effectively, to send an email to congresspeople and senators. Which email would be a whole lot more effective coming from the voters instead of the secretary.

The Labor Secretary is empowered by laws passed by Congress to interpret the law in order to implement it. Congress passes laws delegating certain authority to Executive Branch departments.

If the Labor Secretary is not acting in accord with Federal Statutes passed by Congress and legal precedents established by the Federal Courts, the Secretary can be sued and injunctive relief sought. Of course the Secretary can be sued even if they are following the law.