Joint Employer Rule CRA Organizational Sign-On Letter

Letter Text

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.