BUSINESS GROUPS FILE JOINT EMPLOYER PETITION

BUSINESS GROUPS FILE JOINT EMPLOYER PETITION   

Labor Law

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.”

NLRB launches ethics review

NLRB launches ethics review

It is becoming apparent that reform of the NLRB is well underway via the leadership of Peter Robb and John Ring.  Earlier this week, GC Peter Robb issued guidance issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules.

There are three categories of rules

• Category 1 Rules are generally lawful, covering things like workplace civility, recording and speaking to the press on behalf of the employer
• Category 2 Rules are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, such as conflict of interest policies or broad confidentiality rules that could impact employee protected concerted activity rights.
• Category 3 Rules are generally unlawful, such as rules barring discussion of wages or rules against joining outside organizations.

Board chair John Ring has also been active, telling members of Congress the NLRB will be engaging in rulemaking on joint employer issues this year.  Ring also announced this week that the NLRB will conduct a “comprehensive review” of its ethics policies concerning the circumstances under which a board member should recuse himself from a case.

NLRB Chairman John Ring previewed the review in a letter sent to three liberal lawmakers on June 5. Today’s announcement said the board will seek outside guidance and examine the recusal practices of other independent agencies. The review will conclude with a report that specifies conditions for recusals.

Earlier this week, the board rejected a motion by Hy-Brand Industrial Contractors to reconsider its joint employer case after the board vacated its decision in February. But board members split along partisan lines over whether an agency ethics official was right to conclude that member William Emanuel had a conflict of interest when he ruled in the case in December.

The two other Republicans on the NLRB called the determination “unprecedented,” claiming it appeared to “go far beyond the stated ethical rules.” Ring appeared to have this objection in mind today, saying the review would “ensure [that] each board member’s right to participate in cases is protected in the future.”

Former Chair Miscimarra Interviewed by POLITICO

POLITICO’s Andrew Hanna sat down with former NLRB chairman Philip Miscimarra to talk about everything from the now-you-see-it-now-you-don’t Hy-Brand joint employment decision to infighting on the current board. Some highlights:

On whether William Emanuel should have recused himself from Hy-Brand (read about the controversy here): “I believe under the ethics rules that were applicable during the time Hy-Brand was decided there was no obligation for member Emanuel to recuse himself … the inspector general report addressing this issue confirmed that at least when the board commenced its consideration of Hy-Brand, member Emanuel didn’t have any requirement of recusing himself.”

On what’s next for the NLRB: ” The board during President Obama’s term implemented very significant changes in a number of very fundamental areas. I would expect in future cases, the board will continue to address situations that involve many of the same issues.”

On infighting among board members: “During my tenure, the board — most of the time — was collegial…. But at the same time, in the relatively narrow band of cases where board members may disagree, there are strongly held views…. I do think that some of the reports about controversies or paralysis at the current board are somewhat overstated.”