News & Commentary

September 11, 2022

Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In this weekend’s news and commentary, the National Labor Relations Board published a notice of proposed rulemaking (NOPR) to expand the number of business regarded as “joint employers” under the National Labor Relations Act, and a new report from the National Domestic Workers Alliance demonstrates that domestic workers are still struggling to make ends meet despite slightly higher wages.

On September 7, the National Labor Relations Board published a notice of proposed rulemaking (NOPR) that would significantly expand the number of businesses presumed to be “joint employers” under the National Labor Relations Act. The rule states that two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” Thus, the proposed rule includes any entity that has the authority to exert direct or indirect control over an employee’s wages, benefits, and other compensation; hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and the manner, means, or methods of work performance. Significantly, the rule does not require that the entity actually exercise that authority or control; rather, the existence of the authority is sufficient to impose liability on an entity. The proposed rule, which explicitly rescinds the Trump administration’s 2020 overhaul of the joint employer standard, would ensure that employers that frequently contract for another employer’s employees are not able to escape liability for practices that violate federal labor law. Large employer groups that are likely to be affected include franchisors and franchisees, entities that supply temporary employees, or entities that utilize contract labor for auxiliary functions such as facilities maintenance and security. This change is especially important given the recent wave of union organizing at franchises across the country.

On September 6, a new report from NDWA Labs, the research wing of the National Domestic Workers Alliance, found that 38% of nannies, home-care workers, and housecleaners are bringing in at least $15 an hour for their work, up from 30% earlier in the year. However, as the country continues to experience record inflation, over 40% of respondents to the survey said they could not afford their rent or mortgage payments. “Even with slight improvements in wages, domestic workers we surveyed are facing real and nearly unchanging challenges to put food on the table and keep roofs over their heads,” said Paulina Lopez Gonzalez, the economist in residence at NDWA Labs. Moreover, despite the tight labor market, domestic workers are having trouble finding work. The report found that the percentage of jobless Spanish-speaking domestic worker respondents remained unchanged in August compared to the previous month. An average of 19% of respondents reported having zero hours of work, and 68% of respondents who had work in August reported being underemployed. These economic challenges make clear the need for the Domestic Workers Bill of Rights Act.

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