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NLRB Moves to Undo Joint Employer Standard

Undoing the Joint Employer standard would hurt workers in industries ranging from fast food to tree trimmers

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by Guest Post on
Sep 21, 2018

The Republican-dominated National Labor Relations Board took a big step backward on Sept. 13 when it announced it was proposing a new rule on its joint employer standard, a decision that could negatively impact millions of working people, including some IBEW members.

“The joint employer standard was a well-considered decision,” said International President Lonnie R. Stephenson. “Unnecessarily reopening this will only benefit large corporations, not working families.”

The proposal seeks to reverse a rule issued in 2015 that came out of a case involving the Teamsters and Browning-Ferris Industries of California, a waste management company, that contracted with a temporary staffing agency.

In that decision, the NLRB determined that any parent company exercising a significant amount of control over employment conditions with its subcontractors or franchises – like McDonald’s Corp. or a franchised tree-trimming service – must also share in employer responsibility. In other words, a parent company can’t shift blame to a franchise owner or contractor over labor issues, and it may have to engage in direct contract negotiations.

The rule, which was expected to impact close to 3 million contract and temporary employees, has been roundly derided by employers. 

In December, the NLRB did in fact rescind the rule, but had to reverse that reversal in February because of an undisclosed conflict of interest involving NLRB member William Emanuel.

The new proposed rule seeks to narrow the definition of what constitutes a joint employer, proposing a much tighter definition of an employer-employee relationship than the Obama-era rule.

“This just lets more corporations off the hook,” Stephenson said. “They say it allows for more clarity, but what it really does is let big business shirk responsibility.”

As the New York Times has reported, joint employer status can affect union organizing not just in terms of contract negotiations, but whether employees can come together in union at all. A parent company can fire a contractor or end a franchise agreement if union activity is suspected. But, if that parent company is a joint employer, there could be legal recourse for doing so.

In a dissent on the new proposal, Democrat board member Lauren McFerran wrote, "there is no good reason to revisit Browning-Ferris, much less to propose replacing its joint-employer standard with a test that fails the threshold test of consistency with the common law and that defies the stated goal of the National Labor Relations Act: 'encouraging the practice and procedure of collective bargaining.'"

The comment period for the proposed rule is open for 60 days beginning Sept. 14

This post was written by the IBEW.

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