House Passes HR Policy-Backed Joint Employer Bill

Employment Law

The House passed the HR Policy-supported Save Local Business Act (H.R. 3441), which would clarify the definition of who is a "joint employer" under the Fair Labor Standards Act and the National Labor Relations Act, as the Senate took a critical step toward restoring balance at the NLRB by confirming a new General Counsel.  H.R. 3441, which passed on a bipartisan vote of 242 to 181 (with 8 Democrats voting for the measure), would reverse the NLRB's controversial Browning-Ferris decision, which expanded joint employer liability to include situations where one company has the "potential" to influence employment conditions in a separate company.  The bill would also create a uniform definition of joint employer under the FLSA (Circuit Courts have various standards) and provide certainty and stability for workers and employers by requiring that a company exert "direct, actual and immediate" control of workers to be considered their employer.  The issue, on which HR Policy testified, affects numerous situations involving more than one company, including contracting, franchising, and the use of staffing agencies.  The bill now goes to the Senate, where it will require 60 votes to pass.  Separately, the Senate confirmed Republican Peter Robb as NLRB General Counsel to replace Richard Griffin, whose term expired at the end of October.  However, the window for the current GOP majority on the Board could close in December when Republican Chairman Phil Miscimarra's term expires and the Board reverts back to a 2-2 party split.  President Trump has not yet nominated a replacement for Miscimarra.