Critics of a major National Labor Relations Board decision restoring an Obama-era standard known as the ‘”joint employer” doctrine called on the Senate Monday to nullify the ruling.
Now controlled by Republican appointees, the NLRB had overturned this standard in a December case called Hy-Brand, but the top federal labor law enforcement agency announced Monday it was vacating that decision. In a statement the board said it had determined that one of its members, William Emanuel, should have recused himself from voting.
Calling the move a “gift” to unions from labor attorneys appointed to the board by former President Barack Obama, House Education and the Workforce Committee Chairwoman Virginia Foxx, R-N.C., urged Senate lawmakers to take up the Save Local Business Act, legislation that would once and for all nullify the original Obama-era decision by rewriting the National Labor Relations Act. “While the Board did its part to return to the traditional joint employer standard in late 2017, this development makes clear that the Senate must pass the Save Local Business Act to protect job creators from future uncertainty,” Foxx said.
Business groups likewise urged the Senate to act. “Today’s decision raises the level of urgency for the Senate to act on the bipartisan joint employer bill passed by the House last November. We are hopeful Senators can step into the breach created by today’s decision and exercise their right to codify a definition of joint employer for small business owners everywhere and end the constant ping-ponging back and forth of this issue,” said Matt Haller, senior vice president of government relations for the International Franchise Association.
Joint employer refers to when one business can be held legally responsible for the workplace policies at another business. Until 2015, that required one business to have “direct control” over the other’s policies. But in a 2015 case called Browning-Ferris, the NLRB, then made up mostly of Democratic appointees, changed the standard to the much vaguer “indirect control.” The move was highly controversial within the business community, which argued the new standard was far too broad and ambiguous. Business groups lobbied both the Congress and the White House to overturn it. In December’s Hy-Brand case, the board, now with a Republican majority, overturned Browning-Ferris and restored the standard back to “direct control.”
In a Feb. 9 report to the board, NLRB Inspector General David Berry said that Emanuel, a Trump appointee to the board, “should have should have been recused from participation in Hy-Brand” due to potential conflicts of interest. Emanuel’s former management-side law firm, Littler Mendelson, had represented one of the clients in Browning-Ferris. Emanuel had previously told Congress in a letter he was under no obligation to recuse himself because the connection between his former firm did not represent anyone in the Hy-Brand case.
Berry argued that because the ruling in Hy-Brand incorporated elements from the dissent in Browning-Ferris that that linked the two cases. “[T]he Board’s deliberation in Hy-Brand, for all intents and purposes, was a continuation of the Board’s deliberative process in Browning-Ferris,” he argued.
The IG’s probe was prompted by an inquiry Democratic lawmakers including Sen. Elizabeth Warren, D-Mass., had made to Emanuel in late January regarding whether he should have recused himself.
