Yesterday was one of the more noteworthy days in recent memory, in regard to employment and labor law related matters. With the announcement of H.R. 3441, Congress will consider whether to amend the National Labor Relations Act and the Fair Labor Standards Act to establish that an employer will be liable for workplace conditions at another business only if the employer exercised 'direct control' over those conditions. Readers might recall that a 2015 National Labor Relations Board ('NLRB') decision, Browning-Ferris, expanded the scope of joint employment and held that 'indirect control' was sufficient to establish a joint employer relationship (and thus liability for the employer). Given the potential ramifications that the passage of this bill could produce (or the continued struggle and uncertainty for employers if this bill does not pass), I wanted to highlight a few articles on the matter.
As always, below are a couple articles that caught my eye this week.
What Exactly Is the 'Save Local Business Act'? A Quick Primer
How about we start with the basics, at the beginning if you will, in regard to H.R. 3441 aka the 'Save Local Business Act'. I already highlighted the bill yesterday (as well as above), but Press Release Rocket published a great article with gives a rather succinct overview of the bill (along with a defense to a pro business group that explains its rationale for why this legislation is needed). Call this a primer (or a refresher for those more familiar with the bill) that is worth a quick read.
National Council of Chain Restaurants Champions Attempt to Rewrite Joint Employer Definition
Similar to the reference to the opposition to H.R. 3441 by the Teamsters, below, the National Council of Chain Restaurants (NCCR) coming out in support of the bill should not be much a surprise. I do highlight this article to draw attention to one of the prevailing themes that has emerged with the announcement of this legislation: Since the Browning-Ferris decision, a great deal of uncertainty has emerged in the arena of joint employer liability. Advocates of this bill, including the NCCR, have argued that passage of H.R. 3441 is necessary to reign in the 'regulatory overreach' of the NLRB and. Ring joint employer liability back to the 30 year old standard that had been applied before Browning-Ferris.
Teamsters Announce Opposition to Attempt to 'Rewrite' Joint Employer Definition
To the surprise of very few, the Teamsters announced yesterday their opposition to the 'Save Local Business Act' (aka H.R. 3441 aka the bill announced by members of the House yesterday to do away with the Obama era Browning-Ferris NLRB decision that broadened the scope of joint employers). While this bill is still in the very early stages (and the Teamster's opposition likely will not noticeably tip things in either direction), this is likely the first of many public efforts by pro-employee and labor groups who will seek to detail the legislation. I doubt it will have a major impact (as Republicans have majority control in Congress and a Republican President who would likely sign the bill into law), but perhaps these efforts can succeed in pealing off a few Republican members of Congress?
Similar with the opposition by the Teamsters to H.R. 3441, at least one Democrat in Congress had announced his opposition to the bill. Sean Higgins at The Washington Examiner noted that Democratic Representative Bobby Scott from Virginia criticized the bill on Thursday, pointing out that rewriting the definition of joint employer would insulate franchisers from liability and instead put small franchisees on the hook for their franchisers' actions. Interesting argument, as it will be interesting to see if other Democrats adopt this defense to the bill. Of course, note that at least one Democratic Representative, Henry Cueller from Texas, has come out in support of the bill. Perhaps more Democrats will fall in line behind Cueller? This is one development I would keep an eye on.
What Readers Can Expect From a President Trump Era NLRB
In full disclosure, while this article from Chris Wolf over at InsideAlerts does not directly address H.R. 3441, it does turn an eye toward the (near) future when the NLRB will likely be comprised of several of President Donald Trump's appointments and what readers could expect in terms of issued decisions. Remember, the Browning-Ferris decision was issued during the Obama administration and subsequently turned joint employer liability on its head. Might we see similar decisions from a Trump administration era NLRB? Quite possible, of course I would expect those decisions to tilt more in the direction of employers...
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