The House Education and Workforce Committee voted 21-15 Oct. 28 in favor of the Protecting Local Business Opportunity Act, H.R. 3459, which would restore the longstanding joint employer standard under the National Labor Relations Act (NLRA).
Introduced by Congressman John Kline (R-Minn.) in September, H.R. 3459 would undo the recent expansion of joint employer liability under federal law and amend the NLRA by limiting joint employer findings to situations where two or more entities share control over employees that is “actual, direct, and immediate.”
The National Labor Relations Board (NLRB) in August issued its decision in Browning-Ferris Industries overturning the 30-year-old “joint employer” standard for determining, with respect to a certain group of employees, when one company is liable for the labor practices of another separate company under the NLRA.
An expanded joint employer standard would expose more companies to legal liability for how their subcontractors, staffing agencies and franchisees treat their employees. The NLRB's ruling could also make businesses -- especially franchisers -- more susceptible to workforce unionization by imposing new collective bargaining obligations and allowing unions the ability to strike or picket a large entity compared with the individual locations where there is a dispute.
Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-Tenn.) and Congressman John Kline (R- MN) each in September introduced legislation (S. 2015 and H.R. 3459) to amend the NLRA to revert to the joint employer test in place prior to the NLRB decision.
In a letter supporting H.R. 3459 and S. 2015, the Coalition for a Democratic Workplace, of which NATSO is a member, said the NLRB’s decision to expand joint employer liability threatens to disrupt hundreds of thousands of business relationships to the detriment of entrepreneurs, other small businesses and their employees.
H.R. 3459 now goes to the House for a vote, although a markup has not yet been scheduled. The Senate HELP committee held a hearing Oct. 6 on S. 2015, but has not yet marked up Alexander's bill.
The Kline-Alexander legislation faces an uphill battle in the Senate and would face a certain veto by President Obama.
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