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Alexander alleges 'coordinated effort to change the law' by NLRB, OSHA

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Sen. Lamar Alexander, R-Tenn., argues that OSHA had no business adopting the NLRB's standards. (AP Photo/Manuel Balce Ceneta)

Sen. Lamar Alexander, R-Tenn., alleged Wednesday that the National Labor Relations Board and the Labor Department's Occupational Health and Safety Administration were coordinating in a controversial move to change corporate liability laws. The change would redefine the legal definition of "joint employer," making companies responsible for workplace violations at other businesses, such as franchisees and subcontractors.

Alexander, chairman of the Health, Education, Labor and Pensions Committee, made the claim during a hearing Wednesday, pointing to news reports showing that OSHA officials were instructing their regional directors to use the same standard that the board was adopting the day before the board's ruling came out.

"It looks like a coordinated effort to change the law to me," Alexander said.

The NLRB is the main federal labor law enforcement agency and operates semi-independently. Its five board members are nominated by the president and confirmed by the Senate. OSHA is a division within the Labor Department that enforces workplace safety rules.

The NLRB said in an August ruling in case a called Browning Ferris that a contractor can be liable for the labor violations of a subcontractor on the griounds that it is a "joint employer" of the subcontractor's workers. This was a reversal of decades of precedent by the board. It had previously narrowly defined a "joint employer" as a company having direct control over another company's workers.

The case was controversial and widely discussed among among businsses groups and workplace law attorneys long before the final ruling came out. It is almost certain that OSHA officials would have heard of it well before the final ruling.

The NLRB has a separate case pending against McDonald's Corp., arguing that it is a joint employer with its franchisees. An estimated 90 percent of those franchises are privately-owned businesses that rent out the McDonald's brand name. The case has alarmed the business community, which has argued the expansion of legal liability would undermine the entire franchise business model. Republicans, including Alexander, have likewise slammed the decision.

Business groups have also expressed concern that the NLRB's standard could become adopted by other federal regulatory agencies.

Alexander said Wednesday that that appeared to be happening. He argued that OSHA had no business adopting the NLRB's standards.

"Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not? Why does OSHA care about that? Why isn't OSHA interested in health and safety?" he said.

Spokespersons for both OSHA and the NLRB could not be reached for comment.