Sen. Patty Murray wrote to Vice President Mike Pence Wednesday asking whether the White House had ever spoken with its nominees for the National Labor Relations Board, the main federal labor law enforcement agency, about the board’s “joint employer” doctrine.
The issue is of major concern to both business and labor groups. The Washington Democrat argued that recent comments by Pence indicated that the White House had discussions with the nominees, Marvin Kaplan and William Emanuel.
Murray, the top Democrat on the Senate Health, Education, Labor, and Pensions Committee, noted in the letter that in a Tuesday speech to the National Retail Federation the vice president said, “as we speak, our administration is rolling back the joint employer rule.”
The senator expressed alarm over that, stating that, “None of the agencies that utilize a joint employer standard have created any new rule regarding joint employment in recent years. Moreover, given that two nominees to the National Labor Relations Board are currently pending before the Senate and have repeatedly assured the … committee that they have not pre-judged issues that could come before them, including how they might rule on issues such as how the NLRB interprets the joint employer standard, your comments are of concern.”
The senator asked the vice president to provide additional details regarding the comments, including whether the administration has conferred with the nominees on the issue. The clear implication of the letter was that Pence had accidentally let slip that the nominees had been instructed to roll back the standard.
However, Murray was incorrect in her assertion that no federal agency had created any new rules relating to joint employer. On June 7, Labor Secretary Alexander Acosta announced that the administration would withdrawal the department’s 2015 and 2016 informal guidances applying an expended joint employer standard to government contracting.
Murray’s office did not respond to a request for comment. The Senate HELP Committee confirmed the nominees Wednesday. No date for a full Senate vote has been set.
Joint employer refers to when one business can be held legally liable for workplace violations at another business it works closely with. Traditionally, the standard only applied when one business had “direct control” over another’s workforce. In 2014, the board expanded the rule to include “indirect control,” a far more ambiguous standard that vastly expands the potential liability corporations face. The broader standard has been used to pursue cases against business franchisors by arguing they are responsible for actions by their franchsees. Franchises were traditionally seen as independent businesses. Business groups have called on the administration to reverse the board.
Kaplan is currently chief counsel of the Occupational Safety and Health Review Commission, a federal agency. Prior to that he was a Republican staffer for the House Education and the Workforce Committee. Emanuel is a shareholder with Littler Mendelson, a management-side law firm that specializes in labor matters, often before the labor board.
Should they be confirmed, they would give the board a Republican majority for the first time since President George W. Bush’s administration. The NLRB’s members are nominated by the president but the agency otherwise operates independently. It currently has a Republican chairman, Philip Miscimarra, but the other two remaining members, Mark Gaston Pearce and Lauren McFerran, are Democratic nominees and the board operates by simple majority.
