Joint Employer Critics Want Funding Bill to Block Board Ruling

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By Tyrone Richardson

Congressional appropriators will return from recess later this month to a buildup of requests urging them to use funding legislation to reverse the National Labor Relations Board’s expansion of joint-employer liability.

The Workforce Fairness Institute April 13 expressed support for a request by 57 mostly Republican House lawmakers that appropriators undo the board’s 2015 decision in Browning-Ferris. That ruling widened potential liability for businesses that use staffing and franchise arrangements, among others. The board said a business may be considered a joint employer of another business’s workers even if it exerts only indirect control over them.

“The U.S. House has an opportunity to address this issue as they consider Fiscal Year 2018 Labor, Health and Human Services and Education appropriations legislation,” the WFI said in its statement of support of the lawmakers’ letter. “It’s absolutely critical they act against this destructive regulation and get small business growth in America back on track.”

The letter to appropriators was written by Reps. Tom MacArthur (R-N.J.) and Henry Cuellar (D-Texas). The added support of the WFI, a business owner advocate, comes as other factors could change the expanded joint-employer liability. Those changes could come from the federal courts or a reconstituted GOP-majority board.

Businesses are critical of the expanded liability because they could be held responsible for labor law violations committed by another company’s workers.

Will Democrats Join Republican Effort?

An aide for House Workforce committee Democrats told Bloomberg BNA April 13 that the recent correspondence to appropriators is a long-shot bid, similar to others that have failed in previous years.

“It’s not going to find its way into legislation,” said the aide, who spoke on the condition of anonymity. “This is a rider like Planned Parenthood defunding and whatever other issue du jour the Majority wants to run into the end of the year appropriations.”

The group’s support comes as a federal appeals court in Washington reviews the Browning-Ferris decision and President Donald Trump’s administration considers how to fill two open spots on the board.

Use of the appropriations process could face a series of challenges, including that Republicans would need to get enough support from Democrats to secure the 60 votes needed to avoid a filibuster in the Senate.

Series of Letters Seeking NLRB Rollbacks

The lawmakers’ April 5 letter was followed a day later by another from a group of House Republicans to appropriators Reps. Tom Cole (R-Okla.) and Rosa DeLauro (D-Conn.).

That letter urges appropriations riders to undo NLRB rulings on the expanded joint-employer liability standard, in addition to streamlined representation election procedures and the recognition of “micro units” within a larger workforce for bargaining purposes.

A spokesman for DeLauro told Bloomberg BNA that “we consider appropriations letters as the bill is written and usually don’t respond to them.”

An aide for Cole didn’t immediately respond to Bloomberg BNA’s request for comment April 13. Congress is on a two-week recess that ends April 24.

The aide for the House Workforce committee Democrats described the string of efforts to amend the government funding bill as part of a larger plan to reverse expanded joint-employer liability.

“They’re saying we will have a tough time in the D.C. Circuit, so let’s try to run something in Congress in case we can’t win in the courts,” the aide said.

A spokeswoman for MacArthur had another take. “Congressman MacArthur is optimistic this bipartisan coalition will help stop this harmful regulation from becoming law of the land,” Camille Gallo said.

To contact the reporter on this story: Tyrone Richardson in Washington at trichardson@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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