Comment on the NLRB’s Proposed Definition of Joint Employer
President Trump’s new appointees at the National Labor Relations Board (NLRB) are on a mission. Quietly, the new Board majority is pushing hard (along with Republican members of congress) to implement a regulation that would help employers continue to deny the union rights and hold down the wages of tens of millions of American workers for some time to come.
The regulation being championed by Trump’s NLRB is a revised (one might say rigged) definition of the term joint employer. How this term is defined and interpreted determines whether workers in certain employment arrangements (most especially temp agency workers, franchised workers, and some subcontracted workers) are able to hold accountable to law, as responsible joint employers, parent corporations that exercise a substantial share of control over their wages and working conditions. What the new NLRB members are proposing is to lock into U.S. labor policy an even narrower and more pernicious version of the joint employer standard that the NLRB had upheld, in one way or another, for several decades. Under that standard, a practice of dubious legality was allowed to spread throughout our economy wherein major corporations appropriate and exploit the labor of certain groups of American workers without recognizing them as their legal employees, thereby denying those workers the protections that our labor and employment laws afford only to employees, and stripping them of any voice or bargaining rights within the giant companies for which they provide labor inputs and create wealth.
To the supporters of the NLRB’s proposed joint employer definition (that is, the corporate employers, temporary staffing agencies and giant franchisors that ride the gravy train), this move by the new Board majority was made necessary by a decision late in the term of President Obama’s NLRB, in August, 2015. In that ruling, involving Browning Ferris Industries (BFI), the Board broadened the old joint employer test, and raised hopes that temps and franchised workers might get the chance to exercise the employee rights long denied them, in relation to the parent corporations that control their working conditions. That decision provided, for the first time, a realistic legal framework for “temps,” franchised workers, and workers in extended subcontracting chains to form or join unions where they work.
The standard set forth in the BFI decision could help temps in many workplaces to establish that the companies that hire them through commercial temp and staffing agencies, (like Nissan and many other auto manufacturers where temps work), co-determine the terms and conditions of their employment and are therefore joint employers. (Similarly, it could enable workers in many franchised outlets to prove that the giant franchisors, like McDonalds, controlling their working conditions are their joint employers.) That would legally obligate these parent employers to recognize and bargain with labor unions that include these workers, and make the big companies liable for unfair labor practices they commit, like when they terminate and replace temps who raise concerns about their low pay and often horrific working conditions. It wouldn’t be easy, but finally, with the BFI decision, “temps” and franchised workers do have the ability to bring those giant parent corporations that control their work to the bargaining table, to negotiate for better conditions and a fair share of the wealth they create.
It is to prevent this scenario, that is, to reverse the ruling in BFI, that the NLRB’s conservative members now advance a narrow and obfuscatory definition of joint employer, one that would block the extension of employee rights to these groups of workers, silence their voices and keep them from asserting economic pressure on corporate America. Characteristically, Trump’s NLRB seeks to implement the proposed policy not through that institution’s normal process (the adjudication of cases, based on facts and law), but by promulgating their definition of joint employer as a regulation, which is a purely political process.
Should the effort succeed, their revision of the joint employer rule would uphold corporate America’s current practice of treating temps and franchised workers as nobodies (or what the temp staffing industry calls “non-employees”), even when the clear facts of the employment relationship more than suffice to show a parent employer’s substantial role in controlling their work. It would allow corporations to continue evading the laws that apply to all employers, effectively leaving layers of workers without rights and the subjects of rapacious exploitation.
In short, which version of the joint employer rule prevails will help determine whether corporate employers can continue their mass escape from accountability to the nation’s laws and social norms surrounding work and employment. It will help determine also whether this giant game of pretend, in which productive workers are treated as “non-employees” by giant employers, will continue, and whether wealth generation for the rich continues to depend so heavily on the pauperization of the working poor.
George Gonos, Ph.D., Professor Emeritus
State University of New York at Potsdam
Currently: Adjunct Professor
Center for Labor Research & Studies
Florida International University