- House Republicans introduced a bill that says it would rein in the current NLRB joint employer standard and potentially provide simplified guidance for employers — if it passes.
- The bill, titled the "Save Local Business Act," would amend the National Labor Relations Act and Fair Labor Standards Act to state an employer can only be deemed a joint employer if it exercises "significant control" over an employee. Bill sponsors claim the law would bring back "clarity" and more neatly outline an employer's responsibility over its employees.
- The bill defines the terms of employment that would indicate significant control, including hiring and firing decisions, pay rate determination, day-to-day supervision, assigning individual schedules and tasks and administering employee discipline.
Whether this bill will survive even to a vote is still unknown. But it's the latest signal that the current administration, as well as congressional leaders, are looking for ways to change the NLRB's ruling on Browning-Ferris and prevent further reach of the joint employer rule.
The joint employer rule first came into the spotlight under David Weil, the Obama administration's Wage and Hour Division leader at the U.S. Department of Labor (DOL), who wanted to crack down on "fissured" workplaces — employers that were increasingly turning to independent contractors and staffing agencies for workers. The DOL at the time issued an Administrator Interpretation expanding the definition of joint employer just as the NLRB ruled in Browning-Ferris, expanding the number of businesses that could considered joint employers and therefore liable in labor and employment lawsuits. This bill specifically scales back joint employment in franchisor-franchisee relationships.
The ball is already rolling on change. The DOL recently took back its joint employer AI and Browning-Ferris is under judicial review, with a ruling expected any day now — just as the NLRB nears its new Republican majority.
More broadly, employers are unlikely to get much more clarification on various wage and hour issues until a WHD administrator is fully in place. That process could extend into 2018.