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By Stephen Lee
Oct. 14 — A pair of Republican House members asked the Occupational Safety and Health Administration to explain its multi-employer citation policy in an Oct. 13 letter.
Reps. John Kline (R-Minn.) and Tim Walberg (R-Mich.) said a recently unearthed OSHA memo suggests that the agency's lawyers are mulling whether joint employer liability can be imposed on a franchisor, changing the agency's long-standing treatment of multi-employer worksites.
In trying to establish whether a franchise relationship exists at a worksite, the memo tells OSHA inspectors to consider such items as brand standards, menu and product creation, and the use of computer systems. Doing so takes inspectors “far outside their expertise,” wrote Kline, chairman on the House Education and the Workforce Committee, and Walberg, chairman of the panel's Subcommittee on Workforce Protections.
The alleged change has “alarmed employers and other stakeholders,” said Kline and Walberg. Business leaders have said the change could hold corporate parents responsible for safety violations committed throughout their far-flung network of franchised locations, over which the franchisors exercise little or no control.
Moreover, the change isn't necessary because OSHA already has a multi-employer policy based on which employer has control, responsibility or the ability to expose a worker to a hazard, and the agency hasn't demonstrated that its current policy is inadequate, the Republican chairmen wrote.
They also said the memo was issued without any public notice or warning.
Kline and Walberg's letter to Labor Secretary Thomas Perez requests all agency documents and communications related to any modification of OSHA's policy, documented exchanges between the Labor Department and the Service Employees International Union, an explanation of OSHA's legal justification for changing the policy and a description of the factors OSHA inspectors currently use when determining multi-employer liability.
In August, the International Franchise Association submitted a Freedom of Information Act request for similar documents.
In its request, IFA said the SEIU has recently begun filing more OSHA complaints as part of a national organizing campaign.
Randy Rabinowitz, executive director of the Occupational Safety and Health Law Project, told Bloomberg BNA earlier this month that OSHA's memo merely reaffirms existing law.
“Regardless of what has happened at the board, OSHA has always asserted the right to cite the controlling employer for hazards,” Rabinowitz said.
Much of the furor over multi-employer liability arises out of an Aug. 27 National Labor Relations Board decision that a company can be the joint employer of workers provided by another company, as long as both firms share or co-determine matters governing the essential terms and conditions of employment (Browning-Ferris Indus. of Calif., Inc., N.L.R.B., 362 NLRB No. 186, 8/27/15).
Labor advocates have argued that the NLRB decision will have no bearing on OSHA's multi-employer worksite policy.
Business groups and management attorneys, however, argue that the Browning-Ferris ruling poses a distinct threat of undoing OSHA's long-standing rules and signifies a clear shift in the way the Obama administration wants to treat franchisors and franchisees.
Kline and Walberg have requested a response by Oct. 27.
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The text of Reps. Kline and Walberg's letter is available at http://edworkforce.house.gov/uploadedfiles/10-13-2015-perez_osha_multiemployer_citation_policy.pdf.
The International Franchise Association's FOIA request is available at http://emarket.franchise.org/FOIAIFA2015.pdf.
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