Dear Congress,
The undersigned
organizations write to share our opposition to the Congressional Review Act (CRA)
challenge to the National Labor Relations Board’s 2023 Joint Employer Rule.
Millions of
workers in precarious and subcontracted work depend on the joint-employer doctrine
to protect their right to organize under the NLRA. In labor-intensive and
underpaid industries like retail, hospitality, fast food, janitorial,
construction, and delivery, workers hired through intermediary subcontractors
like staffing agencies and specialized contract firms are effectively deprived
of their labor rights because the law fails to recognize who their employers
are. They provide work central to the hotels, retail operators, fast food
chains, construction contractors, delivery companies, and other corporations
that rely on their labor, but are unable to hold those employers accountable
when their labor rights are violated. While this harms a broad range of workers, it has particularly damaging impacts for women, Black workers, immigrants, people of color, and people with disabilities who disproportionately hold precarious, low-paid jobs.
The Board’s new
rule reaffirms that, under the NLRA, a worker may be jointly-employed when more
than one entity shares or co-determines the essential terms and conditions of
their work. What matters is not the corporate structure or what the companies
call the work relationship; what matters is who has the power to control the
essential terms of employment, like pay, discipline, and health & safety on
the job.
Now, large
corporations and industry trade groups are pushing Congress to vote for a CRA
resolution to overturn the rule. Despite the claims made by these
self-interested groups, the joint employer rule is a simple and necessary
course correction that:
- · Rescinds
the misguided 2020 rule, which improperly narrowed the NLRA’s coverage and
unmoored the legal standard from the common law, by requiring workers to show
that a business had “substantial direct and immediate control” over the
essential terms of employment;
- · Grounds
the legal analysis in the common law, building on the Obama-era Browning-Ferris
decision that the 2020 Trump rule overrode;
- · Affirms
that companies are liable for committing unfair labor practices (such as
terminating workers for exercising their right to organize) and required to
bargain with their workers as joint employers, where they control the essential
terms and conditions of employment;
- · Accounts
for forms of control that are “indirect” and “reserved,” as well as direct and
actually exercised, in determining whether or not there is an employment
relationship; and
- · Recognizes
that the “essential terms and conditions of employment” include workplace
health and safety, and direction as to how to complete the work, as well as
control over pay and discipline.
This rule is a
major step toward safeguarding the labor rights of millions of workers in
subcontracted employment, ensuring that corporations cannot skirt the law
simply by outsourcing responsibility for their workers. Should a CRA to
overturn this rule be brought to the floor, we strongly urge all Members of
Congress to vote No.
Sincerely,