Trump’s labor agencies get to work for independent workers

America’s culture, economic history and labor law have traditionally treated independent contractors as just that—independent. These employees answer for themselves, with no Big Labor middleman between them and whoever buys their labor. But since at least the Obama administration, eroding this independence has been a priority battle zone in the labor movement’s effort to reverse the steep decline in private sector union membership.

Earlier this year, I fretted that the highly influential Hewlett Foundation-funded ideological strain that afflicts senior members of the Trump administration might encourage it to “Make the AFL-CIO Great Again” at great cost to itself, the American economy, and conservatism. Last week, we got two pieces of good regulatory news suggesting that Teamsters Union boss Sean O’Brien is not as successful a special-interest operator as he would hope to be. Both the Department of Labor and the National Labor Relations Board sided not with American Compass’s sympathies for Big Labor, but the old Republican Taft-Hartley consensus protecting workers’ rights to choose not to participate in the activities of labor unions, which are strongly aligned with Everything Leftism and the Democratic Party.

Big labor’s Biden-era game, in brief

The Trump administration deregulatory efforts concern the definitions of “joint employer” and independent-contractor status and seek to restore traditional practices that organized labor and the Biden administration that served it wanted to overturn.

Big Labor sees expanding the context of joint employment as the path to hundreds of millions of dollars in annual dues-and-fees revenue. But the traditional, limited consideration of joint employment limits unions’ ability to use “corporate campaign” organizing tactics that use business owners’ fear for their reputations to strip workers of the ability to decide whether to unionize in a secret-ballot election. Historically, the rule has gone something like this:

Labor relations doctrine of joint employment has traditionally relied on the principle of “direct supervision” in determining who bears liability for an employee’s workplace situation. In essence, the business responsible for employment was any business that had direct control over an employee’s hiring, firing, wage rates, and job description (known as “essential terms of employment”).

During the Biden administration, the National Labor Relations Board, governed by a presidential-party majority and with its powerful general counsel position held by union lawyer Jennifer Abruzzo, issued regulations aligned with Big Labor’s strategy to compel branding companies to force wide union recognition by card check by expanding joint-employer criteria.

Big Labor’s opposition to independent contracting comes from a similar place. Independent contractors, who are treated as business owners seeking to profit from their entrepreneurial efforts, cannot be forced to accept union representation and (in the 24 non-right-to-work states) pay union dues. But traditional employees can be forced into union representation and (in the 24 non-right-to-work states) forced to pay union dues. More employees (as opposed to contractors) means more union dues, and the pot of potential new conscripts—11.9 million as of the latest Bureau of Labor Statistics count—is larger than the existing pool of private-sector union members (about 7.4 million).

Looking to help its friends, the Labor Department, helmed by radical activist Acting Secretary Julie Su, issued regulations restricting who could be classified as a contractor in 2024.

The Labor Board goes to court

In 2022, the NLRB under a Biden-Democratic pro-union majority (the NLRB is, arguably, the most partisan institution in the United States federal government) and with Abruzzo as its chief legal officer issued a rulemaking that would allow the NLRB to consider a business a joint employer if it had “proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship.”

This was a major expansion of what business relationships would potentially trigger joint employment under the NLRB’s jurisdiction, which principally covers union organizing. If the Biden-era NLRB got its way, unions might be able to use the threat of constant litigation to force companies that contract to use workers, that franchise their brands, or that hire freelancers to compel them to accept union recognition (and, in the 24 non-right-to-work states, pay union dues). The rule went into force in late 2023, and business groups, led by the U.S. Chamber of Commerce, sued. A federal court in Texas stopped the rule from taking effect, and the Biden administration dropped the matter.

Employment-law firm Littler explains, “That ruling created a technical “regulatory gap.” The Biden-era rule was vacated, but the official Code of Federal Regulations had not yet been updated to reflect the return of the previous standard. This left the Board without a formal, codified rule on the books.”

Until two weeks ago. On February 27, the newly confirmed NLRB majority issued a formal notice in the Federal Register (the federal government’s Book of Regulations) that the board’s old rule (which had been in effect de facto after the court ruling), which held that only “direct and immediate control over one or more essential terms or conditions of their employment” could establish joint-employer liability, was once again the standard.

Godot arrives at DoL

In my earlier fretting about the pace of inaction on labor deregulation from the Trump administration, I wrote:

One would expect a new Republican administration in 2025 to issue regulations to reverse those actions. It hasn’t, though the Labor Department did finally list reversing the Biden administration’s independent contractor classification rule on its regulatory agenda in September 2025, suggesting it is on the administration’s radar to be completed in the fullness of time.

“The fullness of time” is a recurring gag in the 1980s BBC show “Yes, Prime Minister,” where lazily self-interested bureaucrats use tactics of delay and obstruction to prevent the elected government from doing anything. It’s bureaucratese for “never.” (Margaret Thatcher was a great fan of the show, reportedly to the chagrin of its creators.)

Well, “never” has arrived, and what a wonderful thing. The Labor Department issued its draft revision of independent contractor standards under the Fair Labor Standards Act and the proposed rules would largely return to the pre-Biden definition of what the department calls its “economic reality” test. Put simply, the Trump administration would prioritize two considerations—the labor-customer’s degree of control over the work and the worker’s opportunity for profit or loss—versus the Biden administration’s six factors of equal weight that were intended to restrict contracting.

Score one for the regular Republicans

In response to proposals by Republicans seeking the Teamsters Union’s favor to adopt the policies of Big Labor Democrats like former President Barack Obama, I wrote:

The dirty little secret of the Current American Plurality that elected President Donald Trump is that while it added many voters to the losing coalitions of prior Republicans like John McCain and Mitt Romney, a majority of its voters and supporters are and were consistently conservative Republicans, who voted against former President Barack Obama twice.

The appointment of Lori Chavez-DeRemer, who co-sponsored Big Labor’s Christmas-tree PRO Act while in Congress, as Labor Secretary was cause for great concern that the second Trump administration would be a free playhouse for the Teamsters Union (a major Democratic interest group), the pro-union think tank American Compass (funded by the Hewlett Foundation, a major all-issue left-wing grantmaker), and other factions hostile to business, independent workers, and the free market. Thus far, that does not seem to be the case.

They are not, in fact, making the AFL-CIO—a pillar of institutional leftism and the Democratic Party—great again. That’s good for American workers.

Source: https://capitalresearch.org/article/trumps-labor-agencies-get-to-work-for-independent-workers/