Per POLITICO, the National Labor Relations Board will propose a joint employer rule on Friday that would reverse the Obama-era Browning-Ferris standard, handing a major win to businesses.
The proposed rule addresses the circumstances under which franchisors can be held liable for labor violations committed by franchisees and contractors. President Donald Trump’s NLRB sought to reverse Browning-Ferris last year, but its efforts were thwarted by ethics conflicts with one of Trump’s appointees, William Emanuel.
In a written statement, the board suggested that the proposal would revert to the pre-Obama standard.
“Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine,” the board said.
The board’s three Republican members favored the change, while Democrat Lauren McFerran dissented. The fifth seat remains vacant.
The NLRB will centralize decision-making, according to Bloomberg Law, in an effort to reduce the influence of regional directors, whom business groups see as too pro-labor.
In a memo sent to regional directors Monday, Beth Tursell, associate to the general counsel, said the changes would lead to higher quality and speed in decision-making.
“Under a centralized approach, decision-writers can expect to be called upon to draft decisions on short notice, and they will give that work the highest priorities,” she wrote.
The memo said that regional directors will be “expected to delegate” certain decision authorities to their supervisors, allowing supervisors to dismiss, withdraw or settle existing cases. Tursell said the approach was tested successfully in 17 of the 26 regional offices.
The National Labor Relations Board today asked for input on whether it should overturn Purple Communications, Inc., an Obama-era decision that allows employees to use corporate emails for union organizing after hours.
The notice, which asks the public to file briefs on the matter, suggests that the Republican-controlled board likely will reverse the Obama standard, barring organizers from using corporate email. While Purple Communications applied only to emails, the board also asked whether it should review the standard for other employer-controlled resources such as company phone lists.
According to POLITICO, more than a dozen business groups filed a petition Wednesday that provides some guidance to the NLRB as it prepares a rule to establish a new, more business-friendly definition of joint employment.
The business groups — including the Chamber of Commerce, the International Franchise Association and the HR Policy Association — suggested that the NLRB to require that any business classified as a joint employer (and therefore jointly liable for labor violations committed by its contractors and franchisees) must have “direct and immediate” control over the employees in question. “‘Essential terms and conditions of employment,’” the groups said in draft language obtained by Morning Shift, “shall mean the hiring, promotion, discipline and discharge of employees; determination of individual employee rates of pay and benefits; engaging in the day-to-day supervision of employees, and assigning to employees their individual work schedules, positions, and tasks.” More here.
SUGGESTED PROPOSED RULE
Petitioners respectfully petition the Board to promulgate and issue the following rule,
pursuant to its authority granted by Sections 6 and 9 of the Act8:
“The Board may consider a person to be an employer in relation to an employee within the meaning of Section 2(2) of the National Labor Relations Act only if such person actually exercises direct and immediate control over the essential terms and conditions of the employment of such employee, and if the exercise of such control is more than limited and routine in nature.
“Essential terms and conditions of employment” shall mean the hiring, promotion, discipline and discharge of employees; determination of individual employee rates of pay and benefits; engaging in the day-to-day supervision of employees, and assigning to employees their individual work schedules, positions and tasks. Essential terms and conditions of employment shall not include any of the following: actions, policies or programs intended (1) by any franchisor to maintain or enforce the brand protection standards required of persons who enter into franchising arrangements with such franchisor; (2) by any entity to
implement or administer any social responsibility code or policy, including safety policies, with respect to suppliers, vendors or other entities with whom it has a business relationship; (3) by any entity to require compliance by its suppliers, vendors or other entity with whom it has a business relationship with any federal, state or local law, regulation or other legal requirement; (4) by any entity to
establish time parameters when the activity or work in question is to be performed; (5) by any entity to establish quality or outcome standards for any activity or work performed for such entity; (6) by any entity to require an individual to wear any type of uniform or any other type of identification that mentions in any manner the entity for which the activity or work is being performed; (7) by any entity to maintain or enforce product, brand, or reputational protection standards for its products, goods or services; and (8) to implement third party delivery and courier services, or technology-based shared staffing applications (including, but not limited to, insurance, training, financing and leasing services).
In no event shall retained or reserved but unexercised control over essential terms and conditions of employment, or the exercise of indirect control over essential terms and conditions of employment, constitute or be evidence of joint employer status under the Act.”