Labor Board’s Joint Employer Rule Should Be Nixed, Democrats Say
House Democrats asked the federal labor board to withdraw a proposed “joint employment” regulation, further complicating the controversial effort to reverse a key Obama administration policy.
The joint employment question determines which business entities are responsible for alleged unfair labor practices in the workplace and for collective bargaining with unions. The issue is crucial for franchises and the many American businesses with a workforce that includes contracted or outsourced workers.
The lawmakers said a recent court decision blocks the National Labor Relations Board from moving to significantly limit the situations in which businesses may be considered joint employers.
A federal appeals court ruled that judges, not the National Labor Relations Board, have the right to determine who is an employer under federal labor law. The court said that analysis should take a company’s indirect control of workers into account. The decision raises new questions about whether the board can proceed with a proposed rule that would require one company to exercise direct control over another’s workers before being designated a “joint employer.”
The proposed rule would replace the current policy, which was developed via a 2015 case decision by a Democratic-controlled NLRB. That policy considers indirect and reserved control over workers to be an indicator of joint employer status, and generally makes it easier to hold multiple entities liable for workplace illegality. NLRB Republicans’ previous effort to reverse course through new case decisions was thwarted by one members’ conflict-of-interest.
The Democrats’ Jan. 8 letter to board Chairman John Ring (R) relies on the appeals court’s opinion, arguing that the rule proposed by the NLRB doesn’t fit within the lines drawn by the court. The lawmakers raise a new challenge that could prolong the rulemaking or foreshadow years of court battles.
The NLRB didn’t immediately respond to requests for comment. The board’s own general counsel has criticized the current proposal as not going far enough to limit joint employer liability.
Public Comments Deadline Approaching
The lawmakers said the NLRB should withdraw the proposed rule and “abide by its current joint employer standard.”
“The court’s decision forecloses” the current proposal “by concluding that the ‘common-law inquiry is not woodenly confined’” to direct and immediate control, Reps. Bobby Scott (D-Va.) and Rosa DeLauro (D-Conn.) wrote. “The proposed rule, or any rule that refuses to consider reserved or indirect control as evidence of a joint employer relationship, would thus fail to comply with the common law.”
Scott became Chairman of the House Committee on Education and Labor Jan. 4. DeLauro is the ranking Democrat on an appropriations and budget subcommittee that has jurisdiction over the labor board.
Rep. Virginia Foxx (R-NC), the ranking Republican on the House labor panel, didn’t immediately respond to requests for comment. The NLRB’s current deadline for the public to submit comments on the rulemaking is Jan. 14.
To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com
To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com
Next Article Previous Article