Committee Democrats Reject Republican Bill That Undermines Workers’ Rights to Bargain with Joint Employers
Democrats Offer Solutions to Strengthen the National Labor Relations Act, Boost Wages, Level the Playing Field
WASHINGTON – At an Education and the Workforce Committee markup today, the Majority reported legislation that would weaken collective bargaining efforts and suppress wages for workers employed by joint employers. Committee Democrats, however, offered a series of alternatives that would strengthen working families by boosting wages, helping workers better balance work and family life, and leveling the playing field for millions of hardworking Americans. all of these proposals were ruled out of order and no vote was taken on these alternatives.
“This Committee ought to be focused on policies that would help working people make a better life for themselves and their families,” said Ranking Member Bobby Scott (VA-03). “We know that workers all across America are struggling and that it has been a very long time since most of them got a raise. We should be partnering to help all workers earn decent wages and receive fair benefits that enable them to provide a better and more prosperous future for their children. That’s where the attention of this Committee should be – not on repeatedly undermining those same workers’ ability to organize and collectively bargain.”
The Protecting Local Business Opportunity Act (H.R. 3549) overturns the National Labor Relations Board’s (NLRB) recent Browning Ferris Industries (BFI) decision, which found that BFI was a joint employer by virtue of its control over the wages and line speed for a staffing company’s employees who work in BFI’s municipal recycling facility. To justify this bill, its sponsors claim that the BFI decision is “designed” to “eradicate franchising and irreparably damage every small business built on the franchise model.” However, the traditional joint-employer test that the NLRB adopted in the BFI decision is a longstanding and traditional test that was in place prior to 1984. This decision does not upend the business model for subcontractors and franchising businesses. If an employer or franchisor wants to be relieved of joint employer liability, all it needs to do is relinquish control over employment practices related to its subcontractors or franchisees.
This bill amends the definition of “employer” under the NLRA by jettisoning the longstanding requirement to apply the common law of agency to determine who is an “employer” –namely a person who “controls or has the right to control” the terms and conditions of employment—and replaces it with a far narrower, and potentially more confusing, definition to involve only those who have “actual, direct and immediate” control.
At a September 29th legislative hearing prior to this markup, two franchisees – Burger King and Nothing Bundt Cakes – expressed fears that the BFI decision would undermine their control over their businesses because their franchisors would feel compelled to take over day-to-day control of their employment practices to limit employment-related liability. This fear is unfounded because these particular franchisees have complete control over their employment practices, and the franchisor has none. One unintended and perverse effect of the proposed legislation – which the bill’s proponents have never addressed – is that franchisors will be emboldened to take more control over their franchisees, because the franchisor would have no liability even if it exercised its right to a franchisee’s employment practices.
Democrats offered substitutes for the underlying bill that would strengthen protections for workers who want to come together to bargain for their fair share of the wealth they help to create (the WAGE Act), help close the wage gap between women and men working the same jobs by strengthening the Equal Pay Act (Paycheck Fairness Act), reduce the misclassification of workers which strips them of important workplace protections (the Payroll Fraud Prevention Act), protects workers from discrimination in the workplace (The Equality Act), and encourages flexible and predictable scheduling (Schedules that Work Act).
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