Democratic Sen. Elizabeth Warren called on the National Labor Relations Board, the nation’s top labor law enforcement agency, to take another look at a December ruling that rolled back a key Obama-era decision on corporate liability known as the “joint employer” doctrine.
The Massachusetts liberal said a recent report by the NLRB’s inspector general showed that board member William Emanuel, a President Trump appointee, should have recused himself from the case.
“William Emanuel’s history of fighting for big corporations against workers’ right to organize endangered his credibility the moment President Trump nominated him. Now the NLRB’s independent watchdog says that Mr. Emanuel should have recused himself from one of the most important decisions the board has made in years, but didn’t. The NLRB must revisit its tainted decision making it harder to hold large employers accountable for violating workers’ rights — with Mr. Emanuel completely recused,” Warren said Wednesday.
Joint employer refers to when one business is so intertwined with a second one that it can be held legally responsible the second business’s workplace policies. Until 2015, that required one business to have “direct control” over the other’s policies. But in a 2015 case called Browning-Ferris, the board’s then-Democratic majority changed the standard to the much vaguer “indirect control,” which vastly expanded legal liability for corporations, especially franchisers. The move was highly controversial with business groups, which argued the standard was far too broad and ambiguous. In a December case called Hy-Brand, the board, now with a Republican majority, restored the standard back to “direct control.”
In a Feb. 9 report to the board, Inspector General David Berry said Emanuel “should have should have been recused from participation in Hy-Brand” because of potential conflicts of interest. The report was first reported by law360, a LexusNexus legal affairs newsletter.
The IG’s probe was prompted by an inquiry that Democratic lawmakers including Warren made to Emanuel in late January. The lawmakers asked whether he had participated in the Hy-Brand vote, arguing that he would have had to recuse himself because Emanuel’s former law firm, Littler Mendelson, represented one of the clients in the Obama-era case Browning-Ferris. In a written response Emanuel confirmed that he had participated in the vote and argued he was not obligated to recuse himself because the connection in Hy-Brand to his former law firm was too remote to merit that. However in a follow-up letter, Emanuel said he would update that response.
Berry disagreed with Emanuel’s argument, noting that the majority decision in Hy-Brand included the “wholesale incorporation” of the dissent in Browning-Ferris. “The board’s deliberation in Hy-Brand, for all intents and purposes, was a continuation of the board’s deliberative process in Browning-Ferris” and therefore connected the two cases, he argued.
