Republicans on the House Education and the Workforce Committee are pressing the Labor Department to comply with requests relating to the agency’s efforts to expand the definition of “joint employer,” a potentially vast expansion of legal liability for businesses.
In a letter Wednesday to Labor Secretary Tom Perez, committee Chairman John Kline, R-Minn., said the Obama administration had provided “no legal justification” for its refusal for more than a year to provide the committee with all the documents it has requested.
The department has said that privacy concerns are stymieing it because the committee’s request includes complaints filed with the Occupational Health and Safety Administration. In Wednesday’s letter, Kline offered a “good faith accommodation” to the department: redact names, addresses, personal telephone numbers and private email addresses wherever necessary. Either that or lawyer up.
“If the department fails to provide all responsive documents — or inappropriately redacts the documents it does provide — by Nov. 4, 2016, the committee will be forced to consider compulsory process to compel production,” Kline said. A committee source who requested anonymity confirmed that Kline meant a formal subpoena.
The “joint employer” issue is of keen interest to business groups and organized labor. The term refers to when two businesses are so intertwined that both can be said to be legally responsible for any violations of worker protection laws. Traditionally, the standard for that was when one business had “direct control” over the other company’s employees.
Last year, the National Labor Relations Board, the main federal labor law enforcement agency, moved to expand the definition to include “indirect control,” a potentially major change that could encompass any company that subcontracts or franchises it brand. Other federal agencies subsequently moved to adopt the same standard as the labor board. An internal OSHA memo leaked to the press last year showed that it was working on an elaborate and expansive legal process to be able to call businesses joint employers.
Businesses say the effort is being driven to aid the administration’s organized labor allies. A broad definition of joint employer would greatly boost union organizing efforts since it would allow them to target franchisers and organize all of their franchisees’ workers at once. The labor board is pursuing a joint employer case against McDonald’s Corp., arguing it is legally responsible for labor law violations at its franchisee restaurants even if the individual locations are privately owned.
The documents requested by the committee would show more of the internal deliberations by the department and other agencies on changing the policy as well as consultations with outside groups. The department has slow-walked the request, Kline said.
“From the department’s initial two-page response through its latest revelation that there are an additional 3,300 pages of yet-unproduced responsive documents, the committee has patiently shown good faith throughout this inquiry. Nevertheless, more than a year later, the department still has not produced all responsive documents; and, many of the documents it has produced contain redacted information,” he said.
A Labor Department spokesman could not be reached for comment.
