Three Republican Congressmen – Senators Lamar Alexander (R-Tenn.) and Ron Johnson (R-Wis.), and Representative John Kline (R-Minn.) — have requested National Labor Relations Board General Counsel Richard Griffin to explain joint-employer comments he made at an October 24, 2014 labor conference urging the NLRB to adopt a more liberal joint-employer standard. Griffin has issued several unfair labor practice complaints against a national food chain, stating, “in that area we have a problem, legally, for our theory to hold franchisors as joint-employers.”
In a letter, the legislators complained to Griffin that he “appear[s] to be pursuing joint-employer cases knowing your legal theory is problematic.” They note that two months after he made his comments, the General Counsel issued several complaints against a national franchisor, claiming it is a joint-employer.
They also asked Griffin to answer a number of questions and to produce several documents:
- Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint-employer?
- If not, please explain your comments made at the October 24, 2014, labor conference.
- Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint-employer standard from November 4, 2013, to present.
- Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint-employer standard from November 4, 2013, to present.
The authors set a deadline of March 19, 2015, to provide the answers to those questions.
As we have previously written, the Board has before it the case of Browning Ferris Industries, No. 32-RC-109684, in which it solicited briefs from non-parties. Many expect the Board to change its analysis for determining whether two entities are joint-employers, and therefore, are liable for each other’s unlawful conduct under the National Labor Relations Act.
The General Counsel is urging the Board to abandon the current “direct control” joint-employer standard and replace it with a “totality of the circumstances” test. Direct control requires that a putative joint-employer have control over terms and conditions of employment of the subject employees. This includes hiring and firing, setting work hours, determining compensation and benefits, and exercising day-to-day supervision. Instead, the General Counsel has urged that the Board consider an easier standard to meet – one based on whether an alleged joint-employer exercises either direct or indirect control over the subject employees who work for another employer, and to consider even whether the alleged joint-employer has “unexercised potential to control working conditions” of those employees.
We will keep you apprised of additional developments in this important area.