A top Chamber of Commerce official predicted Thursday there is enough bipartisan support in Congress to pass legislation nullifying the National Labor Relations Board's expanded joint employer doctrine.
Randy Johnson, the Chamber's senior vice president for labor and immigration policy, said at a press briefing Thursday that Democratic senators are getting pressure from home state businesses to swing things that way.
"Among a lot of labor issues, think we have got a shot at this in the Senate. Now, we might take some compromising at the end but there is a lot of angst over the Browning-Ferris decision and how it has bled through. ... There is a lot of push behind this," Johnson said.
Joint employer refers to when one business can be held legally liable for workplace violations at another business. Traditionally, the standard applied when one business had "direct control" of another business' workplace policies. In its 2015 decision in the case Brown-Ferris Industries, the NLRB, the nation's top labor law enforcement agency, changed that standard to the much vaguer "indirect control," a potentially vast expansion of the doctrine's reach.
The board has used this expanded standard to pursue a major case against McDonald's Corporation, arguing it is responsible for violations by its franchisees even though most are independent businesses that rent out the corporate brand. Other federal agencies adopted the same standard during the Obama administration.
Labor Secretary Alexander Acosta formally announced earlier this year the department would no longer use the standard. The NLRB, however, is an independent federal agency whose members serve set terms.
The situation has troubled the business community, which has heavily lobbied Congress to rein in the NLRB on this issue. A bipartisan group of House lawmakers introduced legislation called the Save Local Business Act to do that. It has 43 cosponsors, only two of whom are Democrats. A corresponding Senate version has not been introduced.
The legislation would amend the National Labor Relations Act and the Fair Labor Standards Act to clarify that a business can be held liable for workplace conditions at another business only when it has "direct control" over those conditions.
Johnson said the Chamber had no worries about getting the legislation through the GOP-led House but the Senate would be a tougher fight. Still, he was optimistic that the NLRB's policy would be reversed one way or another.
"Now, it could be that a case will move through the National Labor Relations Board that reverses Browning-Ferris and that would take the wind out of the sails of the legislation. We'd be happy with that too," Johnson said.