Monday, June 27, 2016

The attack on the NLRB's new joint-employer standard intensifies


Last week was a good week for opponents of the NLRB’s new, and more liberal, joint-employer standard, announced last summer in Browning-Ferris Industries of Calif. 

First, Rep. Henry Cuellar, a Texas Democrat, sought to add language to an upcoming spending bill that would block the NLRB’s ruling in Browing-Ferris. When a Democrat is at odds at what the NLRB is doing, the Board is well off the mark.

Then, the U.S. Chamber of Commerce and International Franchising Association jointly published a comprehensive 40-page take-down of Browing-Ferris. The report, entitled, Main Street In Jeopardy [pdf], details how Browing-Ferris is the biggest threat currently facing the American small business.

On August 27, 2015, the NLRB issued a decision in a case known as Browning-Ferris Industries (BFI). Despite the Board’s assurance that it had merely “refined” its standard for determining joint employment under the NLRA by applying “long-established principles,” employers knew that the decision represented a significant policy change with potentially serious economic consequences. In replacing the time-tested “direct and immediate control” standard with a sweeping and vague test based on “indirect” and “potential” control over fundamental terms and conditions of employment, the NLRB had suddenly exposed a broad range of businesses to liability for workplaces they don’t control and workers they don’t employ.

The Board’s decision only reinforced the anxiety created by the NLRB’s General Counsel, Richard Griffin, who several months prior had filed unfair labor practice charges against McDonald’s as a joint employer with several McDonald’s franchise owners. …

The NLRB’s actions, alarming enough on their own, raised additional fears within the business community that other regulatory agencies would start applying expansive standards to find joint employment status under their respective statutes. Those fears have proved well founded, as both the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division (WHD) at the U.S. Department of Labor (DOL) have indicated their intentions to heavily scrutinize situations that may give rise to joint employer liability. Moreover, several state and local governments have picked up on the concept and begun to apply their own expansive views of joint employment.

I echo these sentiments. According to the U.S. Chamber, “The new joint employer standard will reduce employer flexibility and competition at a time when the economy continues to experience anemic economic growth.” This cannot stand, especially if the EEOC, OSHA, and the DOL’s Wage and Hour Division intend to more broadly impose joint-employer liability based on the NLRB’s standards.

If you are concerned about this issue (and if you are reading this post then you are, or should be, very concerned), write your legislators and urge them to take action to return common sense to this aspect of labor law. Again, to quote the U.S. Chamber, “Left unchecked, the new liabilities created by the NLRB, and increasingly by other government entities, will be to the detriment of workers, employers, and the economy.” We simply cannot afford this to happen.

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