
Ryan Gorman is a student at Harvard Law School.
ProPublica reported yesterday about a potential conflict of interest facing the National Labor Relations Board (NLRB) as they seek to revise the so-called “joint-employer rule” through agency rulemaking procedures. Last week, two Democrats on the House Committee on Education and Labor sent a letter to Board Chairman John Ring expressing concerns over a contract the Board has made with a company called Ardelle Associates. Under the contract, Ardelle will provide the NLRB with temporary workers to help review public comments made on the proposed changes to the joint-employer rule. According to the Democratic representatives, the Board has failed to provide lawmakers with complete information about the terms of the contract. The representatives are particularly concerned that the Board has contracted out an “inherently governmental function” to these temporary workers, who will be involved in categorizing and potentially summarizing public comments, having a substantive hand in a rulemaking process that will affect their company’s interests.
The current form of the joint-employer rule was laid out by the Obama Board in the 2015 Browning-Ferris Industries decision. Under that standard, the Board may find that two or more statutory employers are joint employers of the same employees by looking to both the employers’ “reserved authority” to control the employees’ terms and conditions of employment and the indirect control the employers may exercise. The Trump Board’s proposed standard would require finding that a putative employer “possess and actually exercise substantial direct and immediate control” over the terms and conditions of employment. The Board has previously tried to change the rule through adjudication, as is common practice for the agency. That effort stumbled due to separate conflict-of-interest concerns, and the Board eventually voted to undo the decision. You can read some of OnLabor’s previous commentary on the Trump administration’s attempts to undo the Obama-era joint rule here, here, and here. Andrew Strom also has a piece up today on the Trump NLRB’s other recent attempts to rewrite labor law.
As Tabatha reported yesterday, the United Auto Workers union has gone on strike against General Motors. The strike included nearly 50,000 workers, who walked out of facilities in nine states around the country. President Trump tweeted yesterday that the union and General Motors needed to “get together and make a deal.” Many picketing strikers reacted by hoping the president would stay out of their negotiations. The strike could cost the company upwards of $100 million per day and could last longer than expected, as one of the union’s top negotiators reportedly said that many unresolved sticking points remain.
Meanwhile, other potentially major strikes and demonstrations remain on the horizon. Unions representing over 80,000 Kaiser Permanente workers announced yesterday that their members plan on initiating a weeklong strike starting October 14 of this year. Various unions in the coalition, especially those representing workers in California, had already announced plans to strike, though the full scope of the strike remained unclear. Additionally, climate strikes in nations around the world and cities throughout the United States are expected to take place this Friday. Notably, the strikes may include over 1,000 Amazon employees, who are planning to join the walkout to protest the company’s inaction on climate change. Workers at other tech companies, including Google and Microsoft, have also expressed an intention to participate in the demonstrations.
Daily News & Commentary
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October 8
In today’s news and commentary, the Trump administration threatens no back pay for furloughed federal workers; the Second Circuit denies a request from the NFL for an en banc review in the Brian Flores case; and Governor Gavin Newsom signs an agreement to create a pathway for unionization for Uber and Lyft drivers.
October 7
The Supreme Court kicks off its latest term, granting and declining certiorari in several labor-related cases.
October 6
EEOC regains quorum; Second Circuit issues opinion on DEI causing hostile work environment.
October 5
In today’s news and commentary, HELP committee schedules a vote on Trump’s NLRB nominees, the 5th Circuit rejects Amazon’s request for en banc review, and TV production workers win their first union contract. After a nomination hearing on Wednesday, the Health, Education, Labor and Pensions Committee scheduled a committee vote on President Trump’s NLRB nominees […]
October 3
California legislation empowers state labor board; ChatGPT used in hostile workplace case; more lawsuits challenge ICE arrests
October 2
AFGE and AFSCME sue in response to the threat of mass firings; another preliminary injunction preventing Trump from stripping some federal workers of collective bargaining rights; and challenges to state laws banning captive audience meetings.