House committee passes joint employer bill

POLITICO PRO reports that the House Education and the Workforce Committee today approved legislation (H.R. 3441 (115)) that would limit the extent to which businesses can be held liable for labor violations committed by their franchisees or contractors.

The bill, approved 23-17, would reverse the NLRB’s 2015 Browning-Ferris decision by narrowing the circumstances under which businesses can be classified a joint employer. Under Browning-Ferris, companies that exert only “indirect” control over franchisees may still be joint employers. The bill would revert to a standard of “direct” control.

Republicans approved an amendment to quell complaints from Democrats that the bill made it too easy for franchisers to escape responsibility. The bill lists nine criteria to help judges determine whether a business is a joint employer, including whether it sets employee schedules or administers discipline. Were a business to outsource just one of those responsibilities, it would not be considered an employer, Democrats said.

Republicans insisted that was not the case, but amended the bill’s language somewhat to clarify their goal. “Any lawyer reading that would know that you don’t have to have all of those things,” said Rep. Bradley Byrne (R-Ala.)

Ranking member Bobby Scott (D-Va.) said the amendment did little to fix his concerns. “I think we’re right back where we started — we don’t know what it means,” Scott said. “We’re trying to figure out who a joint employer is and I think this just adds more confusion.”

Republicans rejected six Democratic amendments.