A House Appropriations subcommittee on Thursday marked up Republican legislation that prohibits the National Labor Relations Board, the federal government’s main labor law enforcement agency, from using its controversial “joint employer” doctrine in cases against business.
The prohibition was included the $156 billion appropriations bill for the Departments of Labor, Health and Human Services and Education. The markup was passed by the Labor, HHS and Education subcommittee along strict partisan lines.
The provision was applauded by business groups, who have complained bitterly about the labor board’s expansion of the doctrine under former President Barack Obama. “The harmful new joint employer standard has brought uncertainty and mass confusion to all businesses, including restaurants. We are grateful to [subcommittee] Chairman [Tom] Cole, R-Utah, for including the defunding provision in the labor spending bill to prevent further expansion of this vague standard,” said Shannon Meade, the National Restaurant Association’s director of labor and workforce policy.
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 applied only 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 franchisers by arguing they are responsible for actions by their franchisees. Franchises were traditionally seen as independent businesses.
The appropriations bill would force the board to revert to the direct control standard. The legislation also would codify that the board does not have authority over labor matters on American Indian reservations, another expansion of authority the board asserted under Obama.
Earlier Thursday, the Senate Health, Education, Labor and Pensions Committee held a hearing on President Trump’s nominees for the NLRB’s two remaining open seats, Marvin Kaplan and William Emanuel. Should they be confirmed, they would give the five-member board its first Republican majority since President George W. Bush’s administration.
