Status
The ABC-opposed and House-passed PRO Act (H.R.20/S.567) includes a provision that dramatically expands the joint-employer standard under the National Labor Relations Act.
On Sept. 6, the National Labor Relations Board announced a new joint employer proposed rule, which would rescind and replace the ABC-supported 2020 final rule on joint-employer status under the NLRA. As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.
On Sept. 29, ABC joined the Coalition for a Democratic Workplace and several other organizations in urging the NLRB to extend the Nov. 7 comment period deadline by 60 days.
On Oct. 14, the NLRB announced it is extending the comment deadline on the proposal from Nov. 7 to Dec. 7 in order to allow sufficient time for parties to file initial comments.
On Oct. 20, ABC participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the proposal. ABC expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners.
On Dec. 7, ABC submitted comments opposing the new NLRB proposal. In addition, the ABC-led CDW created a grassroots toolkit to tell the National Labor Relations Board to abandon its radical joint employer proposed rule. It provides an explanation of the rulemaking and a ready-to-send letter to the NLRB explaining why the new joint employer standard would be disastrous.
In July 2021, the DOL issued a final rule to rescind the Trump-era joint employer final rule under the Fair Labor Standards Act. ABC strongly supported the 2020 joint employer final rule; however, shortly after its issuance, 18 blue states sued the DOL under President Trump in federal court to strike it down and a judge ruled that parts of the rule were illegal. A business coalition that includes ABC intervened in the case, in part to defend the construction industry against unwarranted attacks on the industry’s long-established methods of doing business by the state plaintiffs.
Desired Outcome
ABC is disappointed that the Biden-era DOL rescinded the 2020 joint employer final rule. ABC supported the prior final rule because it promised to bring additional clarity to a confusing area of the law, help alleviate unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry, reduce needless litigation and encourage innovation in the economy. ABC supports the Save Local Business Act (H.R. 2826/S. 1261) introduced on April 26 by Sen. Roger Marshall, R-Kan., and Rep. James Comer, R-Ky., to make clear that an employer may be considered a joint employer in relation to an employee only if the employer directly, actually and immediately exercises significant control over the essential terms and conditions of employment. ABC joined a coalition in support of the legislation.