Labor Board Counsel Griffin Tight-Lipped on Joint Employer Query

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By Chris Opfer

National Labor Relations Board General Counsel Richard Griffin June 27 gave a group of House Democrats the short version of his thoughts on whether the board’s closely watched decision to expand joint employer liability changes the approach the NLRB took in a memo issued before that decision.

“The memorandum speaks for itself,” Griffin told the lawmakers in a letter obtained by Bloomberg BNA. He was referring to a 2015 memo in which Associate General Counsel Barry Kearney said fast-casual franchiser Freshii Development LLC wasn’t a joint employer of workers at a Chicago Freshii franchise. Griffin added that the memo “of course, should be read in light of subsequent developments, including the Board’s decision in” Browning-Ferris Industries.

The board in Browning-Ferris ruled that a business that exerts indirect control over employees of a contractor, franchisee, or staffing agency may be considered their joint employer for bargaining and liability purposes.

In a memo issued months before the Browning-Ferris decision, Kearney said Freshii wasn’t a joint employer of the Chicago franchise workers under either the traditional test or the one proposed in Browning-Ferris. He said the company wasn’t directly involved in employment matters and didn’t indirectly control the workers’ terms and conditions.

Griffin’s clipped response—he also thanked the lawmakers for their interest in the issue—comes as a federal appeals court in Washington is expected to soon decide a challenge to the Browning-Ferris decision. Courts and legislators are still grappling with how to determine who is an employer for liability purposes under various laws.

Congress May Weigh In

Griffin and other supporters of the board’s decision say expanded joint employer liability reflects new workplace realities that often include a complicated web of contractual and staffing relationships. The decision gives workers a better chance of being able to directly bargain with all of the entities that determine the terms and conditions of their employment, according to advocates.

A total of 19 House Democrats in May asked the NLRB’s Kearney if the Freshii analysis still stands. Business groups like the International Franchise Association are courting Democratic support for expected legislation to undo the Browning-Ferris decision, in part by pointing to the uncertainty that some businesses say the ruling has created for them.

Michael Layman, executive director of employer-side advocacy group the Coalition to Save Local Businesses, chided Griffin for the “dismissive and unsatisfying response” to the lawmakers’ inquiry. “The joint employment uncertainty created by the NLRB is reaching all levels of business—including small franchise employers, construction companies, service providers, and all their business partners—and it will continue to harm businesses until Congress enacts a permanent, legislative solution,” Layman said in statement.

The NLRB didn’t immediately respond to Bloomberg BNA’s request for comment.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

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

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