NLRB’s proposed rule would narrow definition of “joint employer”, therefore making it harder to hold employers accountable for labor violations
HARRISBURG – Today Attorney General Josh Shapiro, together with New York Attorney General Letitia James, led a coalition of state attorneys general in submitting a comment letter to the National Labor Relations Board (NLRB) in opposition to the NLRB’s proposal to narrow its joint-employer standard. The joint-employer standard of the National Labor Relations Act (NLRA) governs the status and liability of an employer that shares control over the terms and conditions of workers’ employment with another employer, such as in a franchising or subcontracting relationship. The full letter is available here.
“The NLRB is betraying one of the core purposes of its existence – in this case: protecting the rights of workers,” said Attorney General Shapiro. “I established the Fair Labor Section within my office to champion workers’ rights and to ensure we’re doing everything we can for Pennsylvanians in the workforce. We have taken the federal government to court for not doing its job to protect the rights of Pennsylvanians and Americans, and I will continue to fight for protections for working men and women.”
The current joint-employer standard under the NLRA was set forth by the NLRB in a 2015 decision, which concluded that a company is an employer if it possesses the right to control or actually exercises control, whether direct or indirect, over employees’ terms and conditions of employment. Just two weeks ago, the U.S. Court of Appeals for the District of Columbia affirmed this decision in Browning-Ferris Indus. v. NLRB, No. 16-1028, (D.C. Cir. Dec. 28, 2018).
By submitting the comment letter, the state attorneys general – who enforce various federal, state, and local labor and employment laws and have worked to hold joint employers accountable for violating those laws – voice their concerns on behalf of workers in their states to ensure that workers’ rights under the NLRA are vigorously protected. The state attorneys general contend that the Proposed Rule undermines the statutory purposes of the NLRA, will make enforcement of the NLRA more difficult, and raises serious concerns under the Administrative Procedure Act. In particular, the State AGs raise questions about the integrity of this rulemaking, which attempts to push forward the same joint-employer standard adopted in an 2017 NLRB ruling that was later thrown out because of a potential conflict of interest by one of the deciding NLRB members – who also participated in this rulemaking.
“The National Labor Relations Board is entrusted with protecting workers, not putting them in harm’s way,” said Attorney General Letitia James. “These proposed rules would limit legal protections for workers, compromise collective bargaining, and allow companies to potentially evade justice for labor violations. We must be doing all we can to protect workers’ rights, not deny them, and my office will continue to vigorously defend New York’s workers.”
Along with Pennsylvania and New York, today’s comment letter were filed by the Attorneys General of California, the District of Columbia, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Virginia and Washington.
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