Now that Republicans in Congress are about to get a President who will sign their bills into law, they are eager to overturn even the most modest pro-worker measures that President Obama’s appointees were able to implement. One of the top items on the chopping block is the “joint employer” standard that the NLRB announced in 2015 in its Browning-Ferris Industries decision. What’s unfortunate is that rather than debate the Board’s decision on the merits, Republicans in Congress insist upon misrepresenting the decision and its effects.
Consider a recent column by Representative Bradley Byrne, who sits on the House Education and the Workforce Committee. He wrote, “[t]here may be no regulation that threatens to crush small businesses and working people more than a recent ruling from the National Labor Relations Board relating to the definition of a ‘joint employer.’” Byrne asserts that the ruling will make big firms liable for the actions of small firms, and thus they are “unlikely to do business with them anymore.” This is simply wrong. Joint employers are not automatically liable for each other’s actions. Instead, under long-settled Board law, a non-acting joint employer is only liable where it knew or should have known that the other employer acted for unlawful reasons. Apart from being wrong as a matter of law, the claim is absurd as a matter of common sense. It’s like saying no homeowner would ever hire an electrician because there are some circumstances where the homeowner could be liable for actions taken by the electrician. In fact, the Browning-Ferris decision wasn’t about liability, but rather about the right of workers to bargain with actual decision-makers. The workers in Browning-Ferris were employed by a staffing agency, but Browning-Ferris retained the right to dictate who could work at the facility, it set schedules, controlled the speed of the production line, and imposed a maximum wage rate for the agency’s employees. When the workers formed a union, they wanted the right to bring Browning-Ferris to the table, so that they could bargain about these vital issues. Byrne also makes the unsupported claim that 600,000 jobs “could be either lost or not created” because of the Browning-Ferris decision. But, at most, the decision might lead big firms to follow a different business model – if big firms choose to hire workers directly rather than through intermediaries, the workers’ jobs won’t disappear.
Representative Byrne is not an outlier. John Kline, the outgoing chairman of the House Education and Workforce Committee, recently described the Browning-Ferris decision as “restrict[ing] the ability of many small businesses owners to run their businesses.” Actually, what the Browning-Ferris decision highlights is the extent to which big businesses already tend to micro-manage the smaller contractors they do business with. If anything, if the Board’s decision is allowed to stand, it might lead large corporations to take a more hands-off approach toward their contractors in order to avoid a joint employer finding.
In fairness to the Republicans in Congress, they likely are hearing from small business owners and franchisees who are concerned about the effects of the Browning-Ferris decision. But that’s only because groups like the International Franchise Association have deliberately sowed fear among their members. The Oxford Dictionaries recently declared “post-truth” to be the word of the year for 2016. But, I’m not yet ready to give up on the role of facts in the legislative process. If Republicans in Congress want to make it harder for workers to bargain with the entities that actually control their terms and conditions of work, then by all means they ought to pass legislation to overturn Browning-Ferris. But, Congress shouldn’t justify its actions by making phony claims about the effects of the Board’s decision.