On September 23, 2015, Senator Lamar Alexander (R-Tenn.) stepped up his attacks on the National Labor Relations Board (“the Board”), accusing the Board of engaging in a coordinated effort with the Occupational Health and Safety Administration (“OSHA”) to change corporate liability laws. During a hearing, Senator Alexander referred to news reports claiming that OSHA officials began instructing their regional directors to use the same “joint employer” standard that the Board adopted in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015) one day before the Board released its ruling. Senator Alexander argued that OSHA has no business adopting the Board’s standards stating:
Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not? Why does OSHA care about that? Why isn’t OSHA interested in health and safety?
Senator Alexander recently introduced legislation to overturn the Board’s new “joint employer standard,” which he asserts “would make big businesses bigger and the middle class smaller by discouraging companies from franchising and contracting work to small businesses.” The proposed legislation, “Protecting Local Business Opportunity Act,” would amend the National Labor Relations Act’s definition of “employer” to restore it to the pre-Browning-Ferris status. Specifically, the proposed act provides:
Notwithstanding any other provision of this Act, two or more employer may be considered joint employers for purposes of this Act only if each share and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.
As we previously reported, the Board’s new “joint employer” standard no longer requires that a “joint employer” both possess and exercise authority to control employees’ terms and conditions of employment.