Republican Lawmakers Plan Rollout of Joint Employer Bill

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By Tyrone Richardson and Hassan A. Kanu

Congressional Republicans are poised to introduce legislation to nix the NLRB’s expanded definition of joint employment under the National Labor Relations Act and shield some employers from having to collectively bargain with workers.

But it’s not clear if the measure will include amendments of other workplace laws.

The National Labor Relations Board in 2015 ruled in Browning-Ferris Industries of California Inc. that a business or organization with indirect control over contractors, franchisees, or staffing agency workers can be considered their joint employer for bargaining and liability purposes. A federal appeals court in Washington, D.C., is currently hearing an appeal of the case.

Some conservative lawmakers are hoping to have a bill out in the next two weeks, Rep. Bradley Byrne (R-Ala.), House Education and the Workforce Committee member and a former labor lawyer, told Bloomberg BNA. Various business groups are also participating in drafting and fine tuning the proposal.

“I’d like to do it yesterday, but sometimes you’ve got to let these things take their time until everybody’s comfortable,” Byrne said. “I would love to get something introduced before we leave for the August break so we have something we’re working on when we get back.”

Business groups and other employer advocates have argued that the Browning-Ferris ruling unfairly extends liability and harms small business owners in particular. Labor unions and employee advocates contend that a reversal would weaken worker protections and enable employers to skirt legal standards for the workplace.

Measures to roll back the ruling, including the Protecting Local Business Opportunity Act ( H.R. 3459, S. 2015), were floated last Congress in both chambers. Republicans gained support from a handful of moderate House Democrats, but the bills ultimately failed to reach the Senate floor for a vote. Similarly, new legislation could pass in the House but likely would have little chance in the Senate, where it would need the support of at least eight Democrats to avoid a filibuster.

How Broad Should Legislation Be?

The scope of the upcoming legislation has yet to be determined, according to several lawmakers and groups, including the U.S. Chamber of Commerce, involved in crafting the proposal. That’s partly due to the question of whether the bill’s language will extend to the definitions of employer under the Fair Labor Standards Act and the Occupational Safety and Health Act. Those statutes require employers to pay minimum wages and overtime and to provide certain safety protections on the job.

“I think we want to see some activity on modernizing” both the NLRA and the FLSA, said Rep. Tim Walberg (R-Mich.), chairman of the Education and the Workforce Subcommittee on Health, Employment, Labor and Pensions. “I mean those are two old laws and weren’t made for anything that we have in the present world,” he told Bloomberg BNA.

Walberg and Rep. Virginia Foxx (R-N.C.), the workforce committee chair, said they are not aware of the specifics of any joint employer legislation being considered.

Byrne told Bloomberg BNA that he’d like the eventual bill to “apply to as many of the different labor and employment statutes as we can make it apply to.”

There are some laws “that are maybe not as important as others, but I’d like to get it as consistent across a statutory platform as we can make it,” he said. Most of his Republican colleagues generally agree that the legislation should apply broadly across statutes, Byrne said.

Republicans this week signaled that legislation may be introduced soon. The committee July 5 announced a full hearing titled “Redefining Joint Employer Standards: Barriers to Job Creation and Entrepreneurship.” Similar hearings have historically been held around the introduction of related legislation.

Bethany Aronhalt, a spokeswoman for Foxx, did not respond to Bloomberg BNA’s requests for comment July 5 and 6.

Bill Would Face Pushback

Employee advocates and committee members such as Rep. Mark Takano (Calif.), ranking Democrat of the Workforce Protections subcommittee, are poised to challenge the joint employer legislation.

“The joint employer standard under the NLRA ensures that employers cannot outsource accountability for following workplace law,” Takano told Bloomberg BNA July 5. “Any effort to repeal this standard would weaken protections for workers, contradict court rulings, and demonstrate yet again that Congressional Republicans and President Trump will take every opportunity to put the interests of corporations over the needs of working families.”

“The Teamsters Union will oppose any legislation that makes it easier for employers to manipulate the system to shortchange their workers,” Teamsters President James Hoffa told Bloomberg BNA July 5. “We cannot allow any legislation that will further undercut the rights of working Americans to become law.”

Efforts Include Lobbying Democrats, Bill Riders

Republican’s crafting of new legislation comes amid a recent groundswell of lobbyist activity aimed at convincing some Democrats— especially those up for re-election in 2018 in states that voted for President Donald Trump—to side with Republicans.

McDonald’s, for example, has tapped several lobbyists with congressional Democratic ties as part of its efforts to get the lawmakers to side with it on the issue.

House Republicans are also seeking appropriations riders to roll back Browning-Ferris and some other recent NLRB decisions, including decisions that streamlined unionization procedures and that recognized “micro units” within a larger workforce for bargaining purposes.

To contact the reporters on this story: Tyrone Richardson in Washington at trichardson@bna.com; Hassan A. Kanu in Washington at hkanu@bna.com

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

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