[Congressional Record Volume 163, Number 181 (Tuesday, November 7, 2017)]
[House]
[Pages H8566-H8581]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SAVE LOCAL BUSINESS ACT
Ms. FOXX. Mr. Speaker, pursuant to House Resolution 607, I call up
the bill (H.R. 3441) to clarify the treatment of two or more employers
as joint employers under the National Labor Relations Act and the Fair
Labor Standards Act of 1938, and ask for its immediate consideration in
the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 607, the
amendment in the nature of a substitute recommended by the Committee on
Education and the Workforce, printed in the bill, shall be considered
as adopted, and the bill, as amended, shall be considered read.
The text of the bill, as amended, is as follows:
H.R. 3441
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Save Local Business Act''.
SEC. 2. CLARIFICATION OF JOINT EMPLOYMENT.
(a) National Labor Relations Act.--Section 2(2) of the
National Labor Relations Act (29 U.S.C. 152(2)) is amended--
(1) by striking ``The term `employer' '' and inserting
``(A) The term `employer' ''; and
(2) by adding at the end the following:
``(B) A person may be considered a joint employer in
relation to an employee only if such person directly,
actually, and immediately, and not in a limited and routine
manner, exercises significant control over essential terms
and conditions of employment, such as hiring employees,
discharging employees, determining individual employee rates
of pay and benefits, day-to-day supervision of employees,
assigning individual work schedules, positions, and tasks, or
administering employee discipline.''.
(b) Fair Labor Standards Act of 1938.--Section 3(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(d)) is
amended--
(1) by striking `` `Employer' includes'' and inserting
``(1) `Employer' includes''; and
(2) by adding at the end the following:
``(2) A person may be considered a joint employer in
relation to an employee for purposes of this Act only if such
person meets the criteria set forth in section 2(2)(B) of the
National Labor Relations Act (29 U.S.C. 152(2)(B)).''.
The SPEAKER pro tempore. The bill shall be debatable for 1 hour,
equally divided and controlled by the chair and ranking minority member
of the Committee on Education and the Workforce.
The gentlewoman from North Carolina (Ms. Foxx) and the gentleman from
Virginia (Mr. Scott) each will control 30 minutes.
The Chair recognizes the gentlewoman from North Carolina.
General Leave
Ms. FOXX. Mr. Speaker, I ask unanimous consent that all Members have
5 legislative days to revise and extend their remarks and include
extraneous material on H.R. 3441.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from North Carolina?
There was no objection.
Ms. FOXX. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise today in strong support of H.R. 3441, the Save
Local Business Act.
Mr. Speaker, the premise of this legislation is simple. It is about
protecting the ability of entrepreneurs in this country to start and
run their own business, and it is about ensuring opportunities within
reach for all Americans.
Every day, men and women across the country work hard to earn a
paycheck and provide for their families, and every day, local
businessowners work hard to keep their doors open and hire employees.
Meanwhile, bureaucrats in Washington are busy setting policies that
have a widespread impact on every workplace in the country. As we
learned during the Obama administration and from rulings made by the
previous National Labor Relations Board, too often these policies do
far more harm than good.
When it comes to rules and policies governing our Nation's workforce,
there has never been a greater need for Congress to clarify areas of
the law that shouldn't be left up to boards and Federal agencies to
decide. That is especially true regarding the joint employer issue. In
2015, when the Obama administration's NLRB unilaterally redefined what
it means to be a joint employer, the result was massive confusion and
uncertainty.
The Committee on Education and the Workforce has heard from countless
individuals on how the vague and unworkable new joint employer standard
threatens job creation, creates new roadblocks for entrepreneurs, and
upends successful business models and relationships.
H.R. 3441, the Save Local Business Act, will deliver much-needed
relief by providing legal clarity under the National Labor Relations
Act and the Fair Labor Standards Act. The legislation simply restores a
commonsense joint employer standard, and it does so in a way that
upholds vital worker protections and ensures all employers know their
responsibilities to their employees.
I want to thank my colleague, Representative Byrne, for introducing
and tirelessly championing this proposal, along with the Democratic
cosponsors.
I urge all Members to vote in favor of H.R. 3441 so we can protect
local jobs, opportunity, and entrepreneurship.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in opposition to H.R. 3441, the so-called Save
Local Business Act. Mr. Speaker, in recent years, employers have
increasingly moved away from direct hiring of employees to the use of
permatemps and subcontracting to reduce labor costs
[[Page H8567]]
and liability. For many workers, the name on the door of the building
where they work may not be the name of the company that technically
signs their paycheck.
In situations like these, where more than one entity controls or has
the contractual right to control the terms and conditions of
employment, the National Labor Relations Act and the Fair Labor
Standards Act hold both entities responsible for violations as joint
employers. The joint employment standard under the NLRA ensures that
workers can negotiate with all parties that control the terms and
conditions of employment. Similarly, the joint employment standard
under the FLSA ensures the appropriate companies can be held
accountable for wage theft, equal pay, overtime pay, and child labor
violations.
H.R. 3441 rewrites both the NLRA and the FLSA by establishing a
narrow definition of joint employer that effectively eliminates
accountability for some of the entities that are actually calling the
shots. Under this bill, an entity may be a joint employer only if it
``directly, actually, and immediately'' exercises control over nine
essential terms and conditions of employment, such as hiring, firing,
determining rates of pay, and scheduling.
However, an entity could have control over all nine of the essential
terms, and if it indirectly exercises control through an intermediary,
such as a subcontractor, then the entity would not be an employer
because its control is not direct. This loophole would allow joint
employers to evade liability for child labor or wage theft and
undermine workers' ability to bring all of the entities to the
bargaining table that actually control the terms and conditions of
employment.
Alternatively, if an entity controls only eight of these nine
essential terms and outsources the ninth, then it may also not be
deemed a joint employer under this legislation. That is just a
loophole.
Under this legislation, an employee could have no employer liable for
a violation. This would arise when each of the joint employers raises a
defense that they are not liable because they are not an employer,
because they don't control all nine of the essential terms and
conditions of employment.
This bill provides no guidance over how many of the essential terms
the joint employer must control. Do they have to control two? a
majority? all nine?
The consequence is that a court could find an employee is owed
overtime, but nobody owes the money because nobody qualifies as an
employer under the definition of the bill. This bill opens the door for
potential chaos. And one thing for sure, H.R. 3441 does not provide the
clarity that its proponents advertise.
Today, we are debating legislation that is based on a misplaced
criticism of the National Labor Relations Board's 2015 decision in
Browning-Ferris Industries, where the NLRB held that the client
employer, BFI, and its staffing agency, Leadpoint, were joint employers
at a recycling facility and, therefore, jointly had the duty to bargain
with the union.
BFI capped wages that Leadpoint could pay and set scheduling,
reserved the right to overrule Leadpoint's hiring decisions, and, if
the NLRB had certified the union with only the staffing agency,
Leadpoint, as the employer, then collective bargaining would have been
a waste of time because Leadpoint was contractually limited in its
ability to bargain without BFI's permission.
The BFI decision reinstated the common law definition of an employer,
a precedent that had been in place at the NLRB for decades prior to
1984. Critics contend that the BFI case threatens the independence of
franchisees.
{time} 1645
Well, first, the BFI decision states that it does not cover
franchising. Second, there are no decisions where a franchisor has ever
been held to be a joint employer with its franchisees under either law.
Despite claims that H.R. 3441 would protect the independence of
franchisees, legal experts point out that, under this bill, the bill
actually insulates franchisors from liability, which leaves the
franchisors free to exercise greater control over their franchisees'
employee relations without liability.
Under this bill, if a franchisor directs actions that could violate
wage or labor laws, then the franchisee is forced to accept this shared
control, without shared responsibility. For example, suppose the
franchisor directs the franchisee to designate all of the employees as
managers and refuse to pay them overtime and the court comes in and
says overtime was owed, then the franchisee is stuck with the bill
because the franchisor is not an employer under this bill. That is not
fair to small businesses and it is not fair to franchisees.
This legislation also creates perverse incentives by rewarding low-
road construction contractors who compete by outsourcing entities that
drive down costs by stealing wages, not paying overtime, and other
violations. A national coalition of construction contractors is warned
that H.R. 3441 would ``further tilt the field of competition against
honest, ethical businesses.''
For those reasons, Mr. Speaker, I urge a ``no'' vote, and I reserve
the balance of my time.
Ms. FOXX. Mr. Speaker, I yield 3 minutes to the gentleman from
Alabama (Mr. Byrne), the chief sponsor of this bill.
Mr. BYRNE. Mr. Speaker, I thank the gentlewoman for her leadership on
this issue and for her continued leadership of our committee.
Mr. Speaker, today is a big day. Today is an opportunity for this
House to stand up for our Nation's workers and to protect the small
local businesses, which form the backbone of the American economy.
Today is about restoring decades-old labor law. Ultimately, today is
about giving clarity to workers and job creators all across our
country.
I have heard from our friends across the aisle that somehow someone
can be an employee without there being an employer. I call that the
immaculately conceived employee. There is no such thing under the law,
nor has there ever been.
This bill does not change the definition of employer. It simply takes
the definition of joint employer back to the way it was a few years
ago.
It is a shame that we are even having to have this bill. But the
activist National Labor Relations Board in 2015 issued a decision that
fundamentally upended labor law as we knew it. This change didn't come
through the democratically elected Congress, but, instead, from a panel
of unelected bureaucrats.
The NLRB's decision and the resulting regulatory agenda have caused
deep uncertainty among job creators. For workers, they are left to
wonder who their boss really is. That is an incredibly confusing
situation to be in.
Under the new joint employer standard, what does it mean to have
``indirect'' or ``potential'' control over an employee?
I have practiced labor and employment law for decades and I do not
know what that means, so I can only imagine the confusion Main Street
businesses are facing due to this standard.
Currently, there are at least nine different legal tests nationwide
to determine joint employer status under the Fair Labor Standards Act,
and more to come. This patchwork of standards creates regulatory
uncertainty, especially for job creators doing businesses in multiple
States.
So, despite what some on the other side want to believe, this is not
an abstract issue. I have visited numerous local businesses in my
district, and they are very worried about this scheme. I have heard
from workers who want to remain an employee of a locally owned business
with an owner who knows them, instead of becoming just another employee
in some large corporation.
Clearly, I am not the only one who heard these concerns. This
legislation is cosponsored by 123 of my colleagues, including Members
from both sides of the aisle. This is a bipartisan issue because it
isn't about politics. Instead, it is about saving jobs and supporting
locally owned businesses.
Let me make something crystal clear: this bill does not remove a
single protection for today's workforce. Despite the scare tactics
being used by big labor bosses and their trial lawyer friends, the same
important protections exist under this legislation, and any
irresponsible employer can be held accountable.
[[Page H8568]]
Mr. Speaker, I urge all of my colleagues to take the side of our
locally owned businesses, to take the side of our small business job
creators, and to take the side of American workers.
Let's end the confusion and let's pass the Save Local Business Act.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 30 seconds to
state that I agree with the gentleman when he says that no rights are
reduced. The only problem is you can't have anybody that is liable to
fulfill your benefits under whatever those rights are. If you are owed
overtime, you are owed overtime. That is not reduced. It is just that
nobody is there to pay it.
Mr. Speaker, I yield 2 minutes to the gentlewoman from Ohio (Ms.
Fudge).
Ms. FUDGE. Mr. Speaker, I thank Ranking Member Scott for yielding.
Mr. Speaker, H.R. 3441, the Save Local Business Act, would
fundamentally redefine the relationship between employers and
employees.
Mr. Speaker, corporate profits and income inequality are at an all-
time high, yet we are debating a bill that would strip workers of their
right to hold employers accountable, allowing corporations to further
stifle wage growth and undermine collective bargaining. This is yet
another Republican attempt to make the rich richer and the working
people poorer, just like their tax bill. What we should be fighting for
is a living wage and employee rights.
My Republican colleagues say the law is ambiguous and we must act to
save small businesses. The law is not ambiguous. They just don't like
it because it holds businesses responsible and forces them to bargain
with unions. This bill is an assault on workers.
Mr. Speaker, I include in the Record a letter from the Economic
Policy Institute outlining how H.R. 3441 will ensure small businesses
are left with sole responsibility for business practices often dictated
by large corporations; and, in addition, a letter from the
International Brotherhood of Teamsters opposing this bill in support of
workers protections.
Economic Policy Institute,
Washington, DC, October 3, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education & the Workforce, House of
Representatives.
Hon. Bobby C. Scott,
Ranking Member, Committee on Education & the Workforce, House
of Representatives.
Dear Chairwoman Foxx and Ranking Member Scott: On behalf of
the Economic Policy Institute Policy Center, we write to
express our strong opposition the H.R. 3441, the so-called
``Save Local Business Act,'' which would do nothing to
protect small business owners or their workers. The Economic
Policy Institute is a nonprofit, nonpartisan think tank
founded in 1986, and our labor policy unit assesses actions
by Congress and federal agencies that impact workers and the
economy. We urge you to oppose this legislation.
The so-called ``Save Local Business Act'' (H.R. 3441) would
roll back the joint employer standards under both the
National Labor Relations Act (NLRA) and the Fair Labor
Standards Act (FLSA). It has nothing to do with protecting
small businesses. In fact, the bill would ensure that small
businesses are left with sole responsibility for business
practices often mandated by large corporations like
franchisors. It would establish a joint employer standard
that lets big corporations avoid liability for labor and
employment violations and leaves small businesses on the
hook.
Given the realities of the modern workplace, in which
employees often find themselves subject to more than one
employer, working people deserve a joint employer standard
that guarantees their rights and protections under basic
labor and employment laws. Instead, this bill would establish
a standard that makes it nearly impossible for workers whose
wages are stolen or who are fired for supporting a union to
get justice. By limiting employer responsibility to only
those firms who ``directly, actually, and immediately''
exercise significant control over the essential terms and
conditions of employment, the bill would enable large firms
that contract for services to evade responsibility under both
the NLRA and the FLSA.
When two or more businesses co-determine or share control
over a worker's pay, schedule, or job duties, then both of
those businesses should be considered employers. A weak joint
employer standard robs workers of their rights, making it
impossible for them to effectively collectively bargain or
litigate workplace disputes--and it leaves small businesses
holding the bag when the large corporations that control
their business practices and set their employees' schedules
violate labor law and refuse to come to the bargaining table.
If this committee wishes to support small businesses and the
workers they employ, then it should support a strong joint
employer standard rather than this legislation.
Since the NLRB narrowed its joint employer standard in
1984, contingent and alternative workforce arrangements--
including reliance on temporary staffing firms and
contractors to outsource services traditionally performed by
in-house workers--have grown dramatically. Recent estimates
find that 15.8 percent of workers were engaged in alternative
work arrangements in late 2015, or around 24 million workers
in today's labor market.
The NLRB's 2015 decision in Browning-Ferris Industries
addressed this issue, requiring all firms that control the
terms and conditions of employment to come to the bargaining
table, ensuring that workers are again able to engage in
their right to collective bargaining. Employers already face
only narrow liability under Browning-Ferris, and the Board
would examine the specific circumstances of each case before
making a determination. Nothing in the decision implies that
all employers in a specific industry will be found to be
joint employers under the NLRA.
Similarly, the Wage & Hour Division's Administrator's
Interpretation on the joint employer standard under the FLSA
did not create any new policy; rather, it simply sought to
make clear for employers their responsibilities under
existing court law and opinion, and to provide the exact kind
of clarity and guidance to employers and the regulated
community that proponents of the H.R. 3441 purport to seek.
And yet, earlier this year, the U.S. Department of Labor
rescinded that Administrator's Interpretation, hiding it from
view.
In spite of its title, H.R. 3441 does nothing to save local
businesses. Instead, it saves large corporations from any
responsibility for violations of the FLSA and NLRA. The
legislation leaves small businesses and their workers without
meaningful recourse. We urge you, your fellow Committee
members, and all Members of the House of Representatives to
oppose this bill.
Sincerely,
Celine McNicholas,
Labor Counsel, Economic Policy Institute Policy Center.
Heidi Shierholz,
Senior Economist and Director of Policy, Economic Policy
Institute Policy Center.
____
International Brotherhood
of Teamsters,
Washington, DC, October 3, 2017.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the 1.4 million members
of the International Brotherhood of Teamsters, I am writing
to express our vigorous opposition to H.R. 3441, the Save
Local Business Act. I strongly urge you to reject this
legislation.
H.R. 3441 seeks to legislate around a century of consistent
case law and established joint employer standards in labor
and employment law. The bill redefines the term ``employer''
so narrowly that many workers will have no remedy when their
employers violate wage laws or their rights to organize and
bargain collectively. We believe the legislation will
encourage ``gaming the system'' so that no one exercises
enough control to be liable as an employer.
The legislation would overturn the National Labor Relations
Board (NLRB) Browning-Ferris decision and leave worker
protections weaker than they were prior to Congress adopting
the National Labor Relations Act (NLRA) in 1935. On August
27, 2015, the NLRB, in its Browning Ferris Industries (BFI)
decision, affirmed the basic principle that two or more
employers are joint employers of the same employees if they
are both employers under common law and they ``share or co-
determine those matters governing the essential terms and
conditions of employment.'' H.R. 3441 would overturn this
decision and allow employers to evade their responsibility to
engage in meaningful collective bargaining.
The BFI case involves a labor-only, cost-plus staffing
contract under which BFI has subcontracted the employment
relationship only to a staffing agency, Leadpoint. BFI owns
the facility and equipment on which Leadpoint's employees
work; it directs the quality and quantity of work performed
by Leadpoint workers.
BFI oversees operations with its own personnel and retains
authority to approve or reject Leadpoint's workers. Leadpoint
can only pay its workers amounts that comply with its
staffing agreement with BFI. As the NLRB noted, the Union
``assert(ed) that absent a change in the joint-employer
standard, a putative employer, like BFI, that is a necessary
party to meaningful collective bargaining will continue to
insulate itself by the `calculated restructuring of
employment and insertion of a contractor to insulate itself
from the basic legal obligation to recognize and bargain with
employees' representative.''
The NLRB joint employer decision is not a dramatic
departure from existing law. It does not upend business as we
know it, nor does it undermine the franchise business model,
as many have claimed. Current law balances the interests of
workers and employers by requiring a fact specific inquiry to
determine whether or not there is a joint
[[Page H8569]]
employer relationship. The NLRB joint employer decision in
the BFI case is fact specific and clarifies the joint
employment standard.
Workers at BFI/Leadpoint chose to exercise their right to
determine whether they wanted to organize and bargain
collectively. Workers voted and the ballots from that
election were impounded pending a decision in the BFI case.
After the NLRB issued its decision, the ballots were counted.
The BFI/Leadpoint workers decisively declared their desire to
bargain collectively by voting 4-1 in favor of Teamster
representation. The NLRB ruling will allow these (and other)
workers to negotiate with and hold accountable the employer
which actually controls the terms and conditions of their
jobs. This legislation will deny them the ability to do so.
Not only would H.R. 3441 overturn the BFI decision, the
bill would also drastically change the definition of
employment relationships under the Fair Labor Standards Act
(FLSA). The FLSA currently recognizes that more than one
business can be an employer. Thus, an employer cannot hide
behind labor contractors, brokers, or others. For example,
while there are many responsible employers in the
construction industry, it is well known that abusive schemes
are far too prevalent in this industry as well as others.
Contractors use subcontractors or labor brokers who
intentionally misclassify workers as independent contractors
or pay them ``off the books'' to the disadvantage of
responsible employers. We believe this legislation will serve
as an incentive for worker misclassification to defeat
employment and labor law, as well as facilitate tax
avoidance.
Because the Migrant and Seasonal Agricultural Workers
Protection Act (MSAWPA) refers to the definition of
``employ'' in the FLSA, H.R. 3441 will have an adverse effect
on the ability of workers covered by the MSAWPA to
effectively enforce child labor laws, and seek redress for
wage theft and other employment abuses.
Again, H.R. 3441 would leave worker protections weaker than
when Congress adopted the FLSA in 1938.
This legislation will fuel a race to the bottom for
workers' rights, wages, benefits and workings conditions.
Working men and women have fought long and hard for the
rights and protections they now have under the National Labor
Relations Act and the Fair Labor Standards Act. H.R. 3441 is
another in a series of intensifying attacks by those who want
to return to the era when working men and women were without
rights, protections, and a voice in the workplace.
You will fail these workers if you do not reject H.R. 3441.
I hope I can tell our members that you stood with them and
other workers in their efforts to achieve and maintain
meaningful worker rights and protections. The Teamsters Union
urges you to vote no on H.R. 3441.
Sincerely,
James P. Hoffa.
General President.
Ms. FUDGE. Mr. Speaker, I urge my colleagues to vote ``no'' on H.R.
3441. Let's get back to fighting for the people we were sent here to
serve.
Ms. FOXX. Mr. Speaker, I yield 3 minutes to the distinguished
gentleman from Michigan (Mr. Walberg).
Mr. WALBERG. Mr. Speaker, I thank the chairwoman for yielding.
Mr. Speaker, I rise today in support of H.R. 3441, the Save Local
Business Act.
For hardworking men and women in this country, one of the most
important relationships they develop in the workplace is the
relationship they have with their employer. This relationship is
paramount to every worker's success. It is a relationship that impacts
their paycheck, their schedule, their benefits, and the future of their
career.
Unfortunately, under the Obama administration, we repeatedly saw
government bureaucrats pursue regulatory policies that harmed workers
and small businesses. The National Labor Relations Board's decision in
Browning-Ferris is a prime example.
In that decision, the Board placed itself squarely in the middle of
the employer-employee relationship by redefining what it means to be a
joint employer.
The Education and the Workforce Committee has been fighting to roll
back this extreme joint employer scheme since it first took effect, and
for good reason. It discarded settled labor policy and blurred the
lines of responsibility for decisions affecting the daily operations of
local businesses across this country. Quite simply, the scheme is a
threat to jobs, entrepreneurship, and local employers across the
country.
I have heard from small businesses and franchises across my district
about how the new joint employer scheme will upend small businesses,
undermine their independence, and put jobs, livelihoods, and dreams at
risk.
It is time to settle once and for all what constitutes a joint
employer, not through arbitrary and misguided NLRB decisions and
rulings by activist judges, but through legislation. The Save Local
Business Act will roll back this unworkable scheme and restore the same
straightforward joint employer test that workers and job creators
relied on for decades.
The Save Local Business Act is about providing certainty for job
creators in each and every one of our districts. It is about keeping
the American Dream within reach.
Mr. Speaker, I urge my colleagues to vote in support of H.R. 3441.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 2 minutes to the
gentleman from New York (Mr. Espaillat).
Mr. ESPAILLAT. Mr. Speaker, I rise in opposition to H.R. 3441, the
so-called Save Local Business Act.
This bill virtually eliminates joint employer liability under the
National Labor Relations Act and under the Fair Labor Standards Act. As
my colleagues have highlighted, there are numerous unintended
consequences presented by this bill.
I want to highlight the impact on an often overlooked segment of our
workforce: our Nation's farmworkers.
Farmworkers are among our Nation's most vulnerable workers.
Farmworkers work long hours in poor conditions for low pay. Many
farmworkers are undocumented and subject to severe abuse. The Migrant
and Seasonal Agricultural Worker Protection Act is the principal labor
statute protecting agriculture workers and establishes wage, health,
safety, and recordkeeping standards for both seasonal and temporary
farmworkers. Joint employment standards under this law and the Fair
Labor Standards Act are vital to protecting the rights and protections
afforded to these workers.
Oftentimes, farmworkers are recruited, hired, supervised, or
transported by intermediaries, sometimes referred to as farm labor
contractors. Farm operators utilizing farm labor contractors maintain
control over working conditions seeking to ensure the financial success
of their operation.
Despite this shared responsibility, farm operators may argue that the
farm labor contractors they engage are the farmworkers' sole employer
responsible for compliance. Farm labor contractors are often thinly
capitalized. This means if a farmworker seeks redress for a violation,
he or she may not be able to collect from the farm labor contractors.
Under the Migrant and Seasonal Agricultural Worker Protection Act,
joint employer liability helps ensure covered workers can also hold
liability from farm operators that share responsibility.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. SCOTT of Virginia. Mr. Speaker, I yield an additional 30 seconds
to the gentleman from New York.
Mr. ESPAILLAT. By amending the Fair Labor Standards Act's broad
definition of ``employ'' and creating a new extremely narrow definition
of ``joint employer,'' H.R. 3441 upends the Fair Labor Standards Act's
joint employer framework upon which we rely on.
Mr. Speaker, I include in the Record a statement from Farmworker
Justice in opposition to this bill.
Statememt on ``Save Local Business Act,'' House Education and Workforce
Committee--Bruce Goldstein, President, Farmworker Justice, October 2,
2017
Farmworker Justice appreciates the opportunity to submit
this statement to the House Committee on Education and the
Workforce. Farmworker Justice, a national advocacy, education
and litigation organization for farmworkers founded in 1981
and based in Washington, D.C. Farmworker Justice has played a
leading role in advocacy, education and litigation regarding
the joint employer concept to remedy and prevent labor
abuses. I am President of Farmworker Justice and have 37
years of experience as an attorney, including at the National
Labor Relations Board, Legal Services, in private practice
and at this organization.
Farmworker Justice opposes the ``Save Local Business Act,''
HR 3441 because it would remove an important mechanism to
protect farmworkers and other low-wage workers from suffering
violations of the minimum wage and child labor requirements.
The bill would make it extremely difficult to hold two
businesses jointly liable as ``joint employers'' of the same
worker or group of workers. This bill, if enacted, would
result in massive violations of the minimum wage and other
labor abuses that would harm farmworkers and harm the
reputation of the entire agricultural sector.
This bill, if enacted, would reverse more than 130 years of
knowledge developed in the
[[Page H8570]]
quest to eradicate sweatshops. The Fair Labor Standards Act
of 1938, which sets minimum wage, overtime, and child labor
standards, adopted a definition of employment relationships
based on 50 years of experience under state laws that evolved
to address employers' efforts to evade child labor and other
labor laws.
During the mid- to late-1800's states adopted laws to
regulate and limit the hours of employment of children and
quickly confronted employers' efforts to evade the laws.
Business owners that operated a manufacturing plant would
claim that the children in the plant were employed solely by
a subcontractor within the plant or had been brought to the
plant by a parent or sibling and therefore should not be
considered to have ``employed'' the child. Even if the
subcontractor or parent were punished, in the absence of
liability on the part of the plant operator it would suffer
no adverse impact and would be free to find another
subcontractor or parent to bring children to do the work. In
addition, often a labor contractor lack sufficient assets to
pay a court judgement, leaving workers remedy-less.
One of the responses of state legislatures was to adopt a
broad definition of employment relationships that imposed
employer status on the larger business owner even where there
existed a labor intermediary. Numerous states adopted
language defining employment relationships that later became
the model for the Fair Labor Standards Act of 1938.
The state laws and the FLSA defined employers as entities
that directly or indirectly employed a worker and defined the
word ``employ'' as including not just the restrictive common
law definition's ``right to control test'' but also as ``to
suffer or permit to work.'' 29 USC Sec. 203(g). To ``suffer''
in this context means to acquiesce in, passively allow or to
fail to prevent the worker's work.
This broad definition imposed liability on a company that
had the power to prevent the work of the worker from
happening and denied the business the ability to hide its
head in the sand about what was happening in its business,
including where it utilized labor contractors or other
intermediaries which were considered employers of those
workers. See Goldstein et al., ``Enforcing Fair Labor
Standards in the Modern American Sweatshop: Rediscovering the
Statutory Definition of Employment,'' 46 UCLA Law Review 983
(1999). The purpose of establishing joint responsibility is
also reflected in FLSA's definition of ``employer,'' 29 USC
Sec. 203(d), `` 'Employer' includes any person acting
directly or indirectly in the interest of an employer in
relation to an employee.''
The facts in the U.S. Supreme Court's decision in
Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)
illustrate the concept. A slaughterhouse company retained a
contractor to assemble a crew of workers to de-bone meat in a
special room within the slaughterhouse. The Department of
Labor sued the defendant company for recordkeeping and
overtime violations. The company denied that it employed the
meat de-boners, arguing that the contractor was their sole
employer. The Court found that the definition of employment
relationships in the FLSA imposed liability on the
slaughterhouse.
The Save Local Business Act would alter the longstanding
meaning of employment relationships under the FLSA and the
National Labor Relations Act. The NLRA excludes agricultural
workers from its protections, so I will focus on the FLSA.
The FLSA's minimum wage applies to farmworkers on most (but
not all) larger farms; small farms generally are excluded
from the minimum wage. 29 USC 213(a)(6). Agricultural workers
are excluded from overtime pay. 29 USC Sec. 213(b)(13)-(16).
FLSA prohibits certain types of child labor although it
allows large agricultural employers, as well as small family
farms, to employ children at younger ages than is allowed in
other occupations. Id. at (c)(1)-(2).
The bill would set criteria so onerous that it would be
rare for two businesses that shared responsibilities
regarding workers to be held to be joint employers; just one
business would be held to be an employer. Because the Migrant
and Seasonal Agricultural Worker Protection Act (AWPA) refers
to the definition of ``employ'' in the Fair Labor Standards
Act, the proposed law may also apply to AWPA. 29 USC
Sec. 1802(5). AWPA is the principal federal employment law
for farmworkers, regulating employment contracts and the use
of farm labor contractors.
Many agricultural workers suffer violations of the Fair
Labor Standards Act's minimum wage and other basic labor
protections. Often, when such workers try to remedy illegal
employment practices, they run into a problem: the farm
operator that really determines their job terms and has the
capacity to prevent abuses, denies that it is their
``employer'' for purposes of the minimum wage and other labor
protections. Instead, the farm operator claims that a ``farm
labor contractor'' or other intermediary is the sole
``employer'' of the farmworkers on its farm. Often a labor
contractor competes for business by promising low labor costs
and when sued by victimized workers cannot afford to pay a
court judgment.
In most such cases, the definition of employment
relationships in the FLSA enables courts and the Department
of Labor to ensure compliance with the law by considering the
farm operator and the farm labor contractor to be ``joint
employers'' and jointly responsible for meeting FLSA's
obligations. This issue has been the subject of numerous
lawsuits in which farm operators have been held to be joint
employers with their farm labor contractors.
This Committee played a historic role in addressing abuses
of migrant workers at the hands of farm operators and their
labor contractors and recognized the importance of the joint
employer concept in ensuring a law-abiding, prosperous
agricultural sector. The Farm Labor Contractor Registration
Act of 1964 was passed in part in response to the powerful
documentary by Edward R. Murrow, ``Harvest of Shame'' that
aired during Thanksgiving weekend in 1960. Congress revised
its provisions and replaced it with the Migrant and Seasonal
Agricultural Worker Protection Act of 1983, 29 U.S.C.
Sec. 1801 et seq. At the heart of this Committee's motivation
was ensuring joint employer responsibility.
``This broad scope of joint employment--and joint employer
liability--is one of the AWPA's most important features. The
AWPA's legislative history indicates that Congress considered
the joint employer doctrine ``a central foundation'' of this
new law. 29 C.F.R. Sec. 500.20(h)(5)(ii); citing House
Report, n.2 at 4552. It is the ``indivisible hinge'' that
allows workers to hold accountable all those responsible for
violating the AWPA's protections. Id, citing H.R. Rep. 97-
885, 97th Cong., 2d Sess.1, reprinted in 1982 U.S.C.C.A.N.
4547, 4552 (1982) (``House Report'').
The economic reality is that few farm operators will risk
their profitability and the survival of their business by
delegating all responsibility to a labor contractor. Most
farm operators who engage labor intermediaries exercise
substantial decision-making regarding the impact of
subcontracted workers on their business. If strawberries or
grapes are harvested when they are over-ripe or under-ripe,
are subjected to pathogens transmitted on the footwear or
hands of farmworkers, or are not handled carefully to prevent
bruising, huge financial losses could result. A farm operator
generally makes these and other major decisions to ensure its
profitability, even if it uses a farm labor contractor,
instead of its own supervisor, to ensure that its decisions
are carried out. Such farm operators should not be able to
avoid complying with the minimum wage or child labor
requirements by blaming a labor contractor as the sole
employer. In most cases, there is shared responsibility among
the farm operator and the labor contractor so that the
workers on the farm ensure the profitability of that
business. That shared responsibility means shared liability
is appropriate.
The joint employer concept does not deprive farms or other
businesses of the ability or right to engage labor
contractors or other intermediaries such as staffing
agencies. Nor does it prevent businesses from entering into
agreements that require labor contractors to comply with all
employment-law obligations, purchase liability insurance
against employment-law claims and hold the larger business
harmless for any litigation and liability that may result.
Joint employer liability creates an incentive to ensure
that a business selects its labor contractors, as well as its
directly-hired supervisors, wisely and ensures compliance
with employment laws. In addition to ensuring protections for
workers, joint employer liability helps protect law-abiding
businesses from unfair competition by unscrupulous employers
that keep their labor costs low by using labor contractors
that violate employment-related obligations. The joint
employer concept is an important, longstanding approach to
minimizing sweatshops and its elimination would result in a
return to an era in which sweatshops are more prevalent.
The joint employer concept also helps create consumer
confidence regarding their purchases. People want to feel
good about the food they eat. Agriculture has a reputation
for poor treatment of farmworkers that would be exacerbated
by the increases in abuses that would flow from this
legislation.
Congress should reject the Save Local Business Act because
it contradicts 130 years of experience in preventing
sweatshops in factories and at least 50 years of consensus
regarding policies needed to remedy and prevent abuses of the
people who labor on our farms and ranches to produce our
food.
Ms. FOXX. Mr. Speaker, before I yield to the gentleman from Texas
(Mr. Cuellar), I want to take just a minute to express my deepest
sympathy to him, as the representative of the people of Sutherland
Springs, for this Sunday's tragic events. He is here today to do the
job they sent him to do, but we all know his heart is very much in that
community. I thank him for being here, and I hope he knows that so many
people are praying for him and the people he represents.
Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr.
Cuellar).
Mr. CUELLAR. Mr. Speaker, I thank the chairwoman for her condolences
and her prayers for Sutherland Springs.
Mr. Speaker, I also thank Mr. Byrne and, of course, Chairman Foxx,
for their work on this particular bill. I thank Mr. Correa, Mr.
Peterson, and the other supporters of this legislation.
Prior to August 2015, the joint employer standard used by the NLRB
[[Page H8571]]
made it easy to understand who is and who is not a joint employer. For
decades, a joint employer relationship existed when one company
exercised ``direct and immediate'' control over another company's
workforce.
However, as you know, under the case Browning-Ferris Industries, the
NLRB departed from many years of legal precedent in August of 2015 by
establishing a new, expanded joint employer standard. This standard
could trigger employer liability by a company exercising vaguely
defined indirect control over an employee.
We have heard from local businesses from my district and across the
State of Texas, and it is clear that this decision is causing them
significant confusion.
In my district--let's say in Laredo, Texas, there is a local
restaurant owner who says that his restaurant currently employs close
to 1,000 local employees.
{time} 1700
This expanded joint employer standard has limited his investment in
his business and the number of workers that he has. Reverting back to
the former joint employer standard that we had for so many years would
allow him to hire the employees that he needs to hire and reinvest
money.
This new expanded standard makes it difficult for local franchisees
like this one in Laredo to offer the employer relationship support from
franchisers for the fear that these benefits could be used against them
in a joint employer lawsuit.
Those fears are well founded. For example, the Progressive Policy
Institute, known for its pragmatic ideas, says that the expansion of
this joint employer doctrine ``may do more harm than good.''
This is why I am supporting this legislation. We are asking that it
revert back to the legal standard that we used for many years.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the
gentleman from California (Mr. Takano), the ranking member of the
Subcommittee on Workforce Protections.
Mr. TAKANO. Mr. Speaker, I thank the ranking member for yielding and
for his continued leadership on behalf of America's workers.
Mr. Speaker, more and more employees today are working for a company
whose name is not on the front of their office building. Instead of
hiring employees directly, companies are renting employees from
staffing agencies. Let me say that again. Companies are renting
employees from staffing agencies and then evading responsibility for
upholding the rights of those workers, even as they profit from their
work.
For decades, sensible joint employment standards under the Fair Labor
Standards Act have ensured that workers can hold employers accountable
for violating wage and hour laws.
Instead of refining those standards to reflect the complex
relationship between workers and employers in today's economy, this
legislation sets a dramatically and intentionally narrow standard so
that no large corporation can be held accountable if their contractors
violate workplace laws.
Mr. Speaker, I include a letter of support in the Record, a letter by
the National Employment Law Project and signed by more than 200
organizations opposing H.R. 3441 because it opens the door to
widespread wage theft and hurts law-abiding small businesses.
Hon. Paul Ryan,
House of Representatives,
Washington, DC.
Hon. Nancy Pelosi,
House of Representatives,
Washington, DC.
Hon. Virginia Foxx,
House of Representatives,
Washington, DC.
Hon. Robert C. Scott,
House of Representatives,
Washington, DC.
Dear Speaker Ryan, Leader Pelosi, Chairwoman Foxx and
Ranking Member Scott: The undersigned organizations write in
opposition to H.R. 3441, the so-called Save Local Business
Act, which would amend the Fair Labor Standards Act (FLSA)
and the National Labor Relations Act (NLRA) to prevent
workers from holding more than one employer jointly
accountable for wage theft, child labor, equal pay
violations, or unfair labor practices even when the employers
jointly exercise and share control over working conditions.
Under our nation's long-standing laws dating back as far as
the late 1800s, employers who share control with their
subcontractors over working conditions may also share
accountability as joint employers for violations of workers'
rights so that they will provide better oversight of working
conditions, and in so doing, ensure broader compliance with
basic labor and employment laws.
H.R. 3441 seeks to dramatically narrow the long-standing
definitions of ``employer'' in the FLSA and NLRA and it is
neither good for workers nor for law-abiding businesses.
H.R. 3441 opens the door to widespread wage theft and worker harms in
occupations across the economy, including in our nation's growth
industries
The bill would undermine protections for millions of
workers across the economy, especially in low-wage sectors
where subcontracting is common: construction, agriculture,
garment, janitorial, home care, delivery and logistics,
warehousing, retail, temp and staffing, and manufacturing,
just to name a few.
Wage theft and other workplace dangers are prevalent in
many of these jobs, and even under current law, millions of
workers today are no longer sure who their boss is--and
indeed, have no way to navigate the intricacies of companies'
contracting relationships to ascertain who is responsible for
workplace violations. When there's no clear line of
accountability, work conditions are more likely to
deteriorate: pay declines, wage theft increases, and
workplace injuries rise. In addition, outsourced jobs pay
less--sometimes as much as 30 percent less--than in-house
jobs, likely due to a lack of worker and subcontractor
bargaining power. In today's economy, we should be looking
for ways to increase workers' pay and economic security, not
laying the groundwork for more sweatshops.
When a subcontractor cannot pay, joint employer standards
ensure that workers have remedies against the contracting
company for the legal violations. Workers should be able to
recover when cheated out of wages, exposed to dangerous
working conditions, or otherwise treated unlawfully.
This bill would also impede workers from bringing equal
pay claims to close the gender pay gap. Because the Equal Pay
Act is a part of the FLSA, and uses the FLSA's definition of
an employer, H.R. 3441 would make it harder for subcontracted
workers to hold their employers accountable for gender-based
pay discrimination.
The bill actually hurts, not helps, law-abiding small businesses
Although framed as a bill to help protect the independence
of small businesses, including those that operate as
franchisees, the bill would in fact insulate corporations,
including franchisors, from liability. Unscrupulous
businesses that employ abusive labor contractors to cheat
workers would gain a competitive advantage over law-abiding
businesses. In addition, franchisees whose business practices
are all but dictated to them by larger corporations will be
hung out to dry for decisions that aren't their own, without
any indemnification from the entity that often all but forces
labor and employment violations on them.
Corporations that engage low-road contractors and then look
the other way gain an unfair advantage over companies that
play by the rules, resulting in a race to the bottom that
rewards cheaters. It's one reason why the job quality of what
were formerly middle-class jobs in America is suffering
today. Working people struggle enough in today's economy.
Don't let Congress make this worse by legislatively rigging
the system in favor of corporations that don't care about the
workers who build their businesses. Oppose H.R. 3441.
Sincerely,
9to5 Colorado; 9to5 Wisconsin; 9to5, National Assoc of
Working Women; A Better Balance; Advocates for Basic
Legal Equality, Inc.; AFL-CIO; American Federation of
State, County and Municipal Employees (AFSCME);
American Federation of Teachers, AFL-CIO; Arizona
Employment Lawyers Association; Asian American Legal
Defense and Education Fund; Barkan Meizlish LLP;
Bricklayers & Allied Craftsmen Local 3 MA/ME/NH/RI;
California Employment Lawyers Association; Center for
Law and Social Policy (CLASP); Center for Popular
Democracy; Center for Worker Justice of Eastern Iowa.
Centro de los Derechos del Migrante, Inc. (CDM); Centro
Legal de la Raza; Change to Win; Chicago Jobs Council;
Cincinnati Interfaith Workers Center; Coalition for
Social Justice; Coalition of Labor Union Women;
Coalition on Human Needs; Colorado Fiscal Institute;
Columbia Legal Services, Washington State;
Communications Workers of America (CWA); Community
Labor United; Community Legal Services in East Palo
Alto; Community Legal Services of Philadelphia;
Community, Faith & Labor Coalition, Indianapolis;
Congregation of Our Lady of Charity of the Good
Shepherd, US Provinces.
Congregation of Our Lady of the Good Shepherd, US
Provinces; Connecticut Legal Services, Inc.; Council on
American-Islamic Relations (CAIR); Democratic
Socialists of America; Demos; Disciples Center for
Public Witness (Disciples of Christ); Economic Policy
Institute Policy Center; Economic Progress Institute;
El Comite de Apoyo a los Trabajadores Agricolas;
Employee Rights Center; Equal Justice Center;
[[Page H8572]]
Equal Rights Advocates; Fair Work Center; Fair World
Project; Faith and Justice Worker Center; Family Values
@ Work; Farmworker Association of Florida.
Farmworker Justice; Florida Legal Services, Inc.; Food
Chain Workers Alliance; Forward Community Investments;
Franciscan Action Network; Friends Committee on
National Legislation; Fuerza del Valle Workers' Center;
Fuerza Laboral; Futures Without Violence; Genesis
Masonry Contracting, LLC; Getman, Sweeney & Dunn, PLLC;
Good Jobs First; Good Jobs Nation; Greater Boston Legal
Services; Greater Hartford Legal Aid, Inc.
Greater Rochester Coalition for Immigration Justice;
Greater SE Mass Labor Council; Hardin & Hughes, LLP;
Head Law Firm, LLC; Hudson Valley Justice Center;
Immigrant Solidarity DuPage, Casa DuPage Workers
Center; Immigrant Worker Center Collaborative (IWCC);
In The Public Interest; Indianapolis Worker Justice
Center; Interfaith Coalition for Worker Justice of
South Central WI; Interfaith Worker Justice;
International Brotherhood of Teamsters; International
Federation of Professional & Technical Engineers
(IFPTE); International Union of Painters and Allied
Trades District Council 35; IWJSD.
Jewish Community Relations Council, Milwaukee; Jobs With
Justice; Justice in Motion; Kansas City Workers' Rights
Board of Missouri Jobs with Justice; Kentucky Equal
Justice Center; Kids for College; Kids Forward; Labor
Justice Committee; Labor Project for Working Families;
Laundry Workers Center; Lebau and Neuworth; The
Leadership Conference on Civil and Human Rights; Legal
Aid at Work; The Legal Aid Society.
Legal Services of Central New York; Legal Voice; Local 3,
Bricklayers & Allied Craftsmen; Los Angeles Alliance
for a New Economy; Madison-area Urban Ministry; Main
Street Alliance; Maine Labor Group on Health; Maine
Women's Lobby; Maintenance Cooperation Trust Fund;
Massachusetts Coalition of Domestic Workers;
Massachusetts Interfaith Worker Justice; Massachusetts
Law Reform Institute; MassCOSH (Massachusetts Coalition
for Occupational Safety & Health); Mechanic Law Firm,
Portland OR; Metrowest Worker Center; Miami Workers
Center.
Michigan League for Public Policy; Missouri Jobs with
Justice; Moms Rising; NAACP; National Advocacy Center
of the Sisters of the Good Shepherd; National Asian
Pacific American Women's Forum (NAPAWF); National
Center for Law and Economic Justice; National Center
for Transgender Equality; National Council for
Occupational Safety and Health; National Council of
Churches; National Domestic Worker Alliance; National
Education Association; National Employment Law Project;
National Employment Lawyers Association; National
Guestworker Alliance; National Immigration Law Center.
National LGBTQ Task Force; National Partnership for Women
& Families; National Women's Law Center; National
Workrights Institute; NETWORK Lobby for Catholic Social
Justice; New Haven Legal Assistance; New Jersey Citizen
Action; New Jersey Policy Perspective; New Jersey Time
to Care Coalition; New Jersey Work Environment Council;
New Labor; New Mexico Center on Law and Poverty; New
Mexico Voices for Children; North Carolina Justice
Center; NWA Workers' Justice Center; Oregon Center for
Public Policy.
Oxfam America; Patriotic Millionaires; Phillips Dayes Law
Firm PC; Pilipino Workers Center of Southern
California; Policy Matters Ohio; PolicyLink; Pride at
Work; Progressive Congress Action Fund; Project IRENE;
Public Citizen; Public Justice Center; Restaurant
Opportunities Centers United; Safe Harbor Law, LLC;
Sargent Shriver National Center on Poverty Law; SE Mass
Building Trades Council; SEIU Local 888.
Service Employees International Union; South Central
Federation of Labor, AFL-CIO; South Florida AFL-CIO;
South Florida Interfaith Worker Justice; Southern
Poverty Law Center; St. Louis Workers Rights Board,
Missouri Jobs with Justice; Stephan Zouras, LLP;
Teamsters Joint Council 7; Teamsters Local Union 350;
Teamsters Local Union 469; The Commonwealth Institute
for Fiscal Analysis (Virginia); The Law Offices of
Gilda A. Hernandez, PLLC; The North Dakota Economic
Security and Prosperity Alliance; The Rhode Island
Center for Justice; The Stolarz Law Firm; The Warehouse
Worker Resource Center.
UltraViolet; Union for Reform Judaism; Union of Rutgers
Administrators, AFT Local 1766; Unitarian Universalist
Association; United Auto Workers (UAW); United
Community Center of Westchester, Inc.; United Food and
Commercial Workers International Labor Union; United
Food and Commercial Workers Union Local 1445; United
Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied; Industrial and Services Workers
International Union (USW); Washington State Budget &
Policy Center; Wayne Action for Racial Equality;
WeCount!; Werman Salas PC; West Virginia Center on
Budget and Policy; Winebrake & Santillo, LLC.
Wisconsin Alliance for Retired Americans; Wisconsin
Alliance for Women's Health; Wisconsin Coalition
Against Sexual Assault; Wisconsin Community Program
Association (WISCAP); Wisconsin Council of Churches;
Wisconsin Faith Voices for Justice; Wisconsin Network
for Peace, Justice, and Sustainability; Women Employed;
Women's Law Project; Workers' Center of Central New
York; Workers Defense Project; Workers' Rights Center
of Madison WI; Workers' Rights Project, Main Street
Legal Services. Inc; Working Families Party; Working
Partnerships USA; Workplace Fairness; Workplace Justice
Project at Loyola College of Law Clinic; Worksafe; WV
Citizen Action Group; Yezbak Law Offices.
Mr. TAKANO. Mr. Speaker, from 2001 to 2013, Wal-Mart was contracting
with three warehouses in my community, and those warehouses contracted
out their staffing to a company that was accused of committing
egregious wage and hour law violations.
Thanks to the FLSA joint employer standard, 1,700 warehouse workers
were able to reach a $22 million settlement to collect the pay that
they were owed from their employer. Under this bill, they would likely
have gotten nothing.
The questions we face today are: Will millions of workers, like the
warehouse workers in my district, lose what little power they have left
to fight against wage theft; will organized workers lose the basic
right to bring all responsible parties to the table to collectively
bargain for better wages and workplaces; will shrewd corporations be
allowed to claim immunity from the laws that protect employees; and,
most of all, will the people's House stand with the people or stand
with the corporations that continue to rig the economy against the
American worker?
Mr. Speaker, I strongly urge my colleagues to oppose H.R. 3441.
Ms. FOXX. Mr. Speaker, I yield 2 minutes to the gentleman from Ohio
(Mr. Chabot), the chair of the Small Business Committee.
Mr. CHABOT. Mr. Speaker, I rise today in strong support of H.R. 3441,
and I want to commend our colleague, Mr. Byrne, for sponsoring this
legislation. I also want to commend Chairwoman Foxx for her leadership
on this very important issue. I am proud to be an original cosponsor
myself.
As chairman of the House Small Business Committee, I have had the
opportunity to see firsthand how the National Labor Relations Board's
new joint employer standard threatens the ability of small-business
owners to remain independent and responsible for their own employees.
At a Small Business Committee hearing last year, an Army combat
veteran and small-business owner testified that: ``Local business
owners may effectively be demoted from entrepreneur to middle manager,
as they are gradually forced to forfeit operational control of the
stores, clubs, inns, or restaurants that they built.''
At the same hearing, another small-business owner testified that: ``I
would cease to be an independent small-business owner . . . ultimately,
I would become a de facto employee of the corporate brand.''
These are merely two examples of the consequences real American
small-business owners face because of the decisions of Washington
bureaucrats and activist judges. The Obama-era joint employer scheme
threatens small businesses, the engines of American economic growth.
Small businesses, after all, create the majority of the new jobs in
this Nation; they spur innovation.
Enacting this legislation would help ensure continued freedom for
America's best job creators.
Mr. Speaker, I urge my colleagues to support H.R. 3441. Passage of
this legislation is necessary to restore certainty to America's small-
business owners and their employees so that they can continue to
operate their businesses locally and independently.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the
gentleman from New Jersey (Mr. Norcross).
Mr. NORCROSS. Mr. Speaker, I include in the Record two letters of
opposition, one from the North America's
[[Page H8573]]
Building Trades Unions, and one from the United Brotherhood of
Carpenters and Joiners of America.
North America's Building
Trades Unions,
Washington, DC, November 6, 2017.
Dear Representative: On behalf of the 3 million skilled
craft professionals who comprise the 14 national and
international unions of North America's Building Trades
Unions (NABTU), I urge your opposition to H.R. 3441, the Save
Local Business Act. If enacted this piece of legislation
would have a devastating impact on the construction industry
which is dependent upon a variety of contractor and
subcontractor relationships.
Unfortunately, many low road contractors in the
construction industry are becoming increasingly skilled in
shielding themselves from legal liabilities through layers of
subcontractors. Contractors use subcontractors or labor
brokers that either pay their employees off the books or
intentionally misclassify them as 1099 subcontractors. When
that is done, income taxes are not deducted, and Social
Security and Medicare taxes are not paid, as well as
unemployment contributions, workers' compensation premium and
overtime.
H.R. 3441 purports to save businesses by making it
extremely difficult for the National Labor Relations Board
(NLRB) and U.S. Department of Labor to find employers jointly
liable for violations of the law. If enacted it would have
the unintended consequence of promoting a low road
contracting model in which those who willfully commit labor
violations are unaccountable, to the disadvantage of law-
abiding employers and their employees.
This piece of legislation would further induce bad actors
to perfect their efforts to undermine the labor standards in
our industry, making it more challenging for American workers
to achieve access to the middle class. It would also create a
competitive disadvantage to high road contractors who obey
the law. As such, I strongly urge your opposition to this
harmful legislation.
Sincerely,
Sean McGarvey,
President.
____
United Brotherhood of Carpenters and Joiners of America,
Washington, DC, September 19, 2017.
Re Opposition to HR 3441, the Save Local Business Act.
Hon. Virginia Foxx,
Chair, Committee on Education and the Workforce, Washington,
DC.
Hon. Robert C. Scott,
Ranking Member, Committee on Education and the Workforce,
Washington, DC.
Dear Chair Foxx and Ranking Member Scott: I write to
respectfully express our opposition to HR 3441, the Save
Local Business Act, because it will provide a safe haven for
unscrupulous contractors in the construction industry who use
a system of subcontractors to deliberately shield themselves
from liability for abusing workers and stealing jobs away
from law-abiding businesses, even as they knowingly profit
from it.
Regrettably, while most companies in the construction
industry are legitimate, responsible employers, we are also
home to many who excel in illegal employment practices. This
fact is well known and widely acknowledged. The trend is for
contractors to use subcontractors or labor brokers who either
intentionally misclassify employees as independent
contractors or, more often, pay employees off the books. They
find two benefits in their schemes. First, through violating
wage, tax, immigration, workers' compensation and other
employment laws, they can shave up to 30 percent off of their
labor costs and underbid law-abiding businesses. Second, if
laws are enforced, contractors use the subcontract
relationship as a shield against liability and replace
offending subcontractors or labor brokers with others that
will do the same.
There is one vulnerability to their schemes. Under the Fair
Labor Standards Act (FLSA) and National Labor Relations Act
(NLRA) these contractors are frequently joint employers with
their subcontractors or labor brokers. The contractors keep
time, supply building materials, discharge workers, provide
training and daily supervision.
H.R. 3441 closes that door by making it exceedingly
difficult to find joint-employer liability. Under the bill,
businesses cannot be joint employers unless they have direct,
actual and immediate control over the essential terms and
conditions of employment--a remarkable reversal of decades of
law. Moreover, a contractor and labor broker need only split
up responsibility over essential terms, and joint employment
is defeated. Indeed, it is arguable that under such an
arrangement there may be no employer at all.
It cannot be forgotten that construction contractors that
scheme to cheat workers out of overtime, wages and the right
to collective action also fail to comply with federal and
state employment tax laws. In Texas alone federal tax losses
from cheating contractors has been estimated to cost the
federal government over 81 billion.
This is not to suggest that legitimate, law-abiding
contractors should not use subcontractors, or that there are
not thousands of legitimate, law-abiding contractors and
independent contractors across this country. But it must be
recognized that abusive subcontracting schemes as described
above are also prevalent in our industry and that this bill
would make it even harder to crack down on these illegal
practices.
Despite its name, HR 3441 is a blue print to violate the
law and drive law-abiding employers out of business and make
it more difficult for working men and women to reach the
middle class. The law needs to protect workers and
responsible businesses--not put them in jeopardy.
Very truly yours,
Douglas J. McCarron,
General President.
Mr. NORCROSS. Mr. Speaker, I thank Ranking Member Scott for yielding.
Mr. Speaker, I rise in strong opposition to H.R. 3441, which is
falsely called Save Local Business Act. The new name should be ``Crush
Local Workers Act.''
I am happy to work with my colleagues on the other side of the aisle.
I look forward to helping small businesses and helping them raise
wages, but this bill does neither. It empowers corporations, and it
depresses wages.
Employers are relying more and more on subcontractors and permanent
temporaries. These temporary staffing agencies employ around 3 million
people. That is about one-fifth of all the new jobs created since 2009.
I have fought to raise wages for over two decades for workers. This
bill lets corporations keep wages low by subcontracting out their work.
They are subcontracting their conscience to put profits over people.
This bill makes it nearly impossible for workers to hold temporary
staffing agencies responsible for unfair labor practices or wage theft.
It denies employees a voice in the workplace. It prevents workers from
joining unions, collective bargaining, which go ultimately to help
raise wages.
We should be lifting workers' wages up, not trying to crush them.
I will remind our colleagues that, from 1930 to 1984, the courts were
the ones who were making these joint employer decisions, and it was
Ronald Reagan's administration who first made this change. It was the
Reagan administration who first made this change.
The Obama administration brought it back to where it was, yet,
apparently, people are forgetting those very important facts.
Mr. Speaker, that is why I urge my colleagues to vote against this
crush local workers act.
Ms. FOXX. Mr. Speaker, I yield 3 minutes to the gentleman from
Tennessee (Mr. Roe), the distinguished chair of the Veterans' Affairs
Committee.
Mr. ROE of Tennessee. Mr. Speaker, I rise today in support of H.R.
3441, the Save Local Business Act.
Mr. Speaker, this debate boils down to whether we want local
entrepreneurship and community engagement through the franchise model
or a one-size-fits-all, top-down model.
When I served as chairman of the HELP Subcommittee, we heard
testimony about the effect of this new joint employer standard from Mr.
Ed Braddy, who owns a Burger King in inner-city Baltimore. Many of the
men Mr. Braddy hires to work at his store have had a run-in with the
criminal justice system, and several of the women he hires has been on
some form of government assistance.
He hires people to give them an opportunity at a better life, as he
described it.
If the new joint employer standard proceeds, the Burger King
corporation will be liable for many of the hiring decisions that are
made by Mr. Braddy. Why would we expect any corporation to know a
community better than someone like Mr. Braddy, who grew up there?
Shouldn't we expect that a corporate entity would be more risk averse
and less likely to give people a second chance?
Think about the incredible story Mr. Braddy has to tell. He dropped
out of high school in the 11th grade before returning when his life was
headed in the wrong direction, according to him. He joined the
Baltimore Police Department, and then he began working in a Burger
King. After the first Burger King he owned closed, he ultimately
rejoined Burger King and purchased his current store.
What is remarkable is when Baltimore experienced unrest several years
ago, Mr. Braddy's store was at the epicenter, his neighbors stood
outside to protect it from being destroyed, and his was one of the only
restaurants open for business the next day.
[[Page H8574]]
Mr. Speaker, if this is not the American Dream, I don't know what is.
On a recent trip that our conference took there, including the
chairwoman, we dined with Mr. Braddy at his restaurant in Baltimore. He
was a wonderful host, I might add.
Joint employer isn't just about restaurants. Hotel owners, fitness
companies, movers, tutoring services, janitorial services, and the list
goes on and on, anyone who franchises their business is affected by
this ruling.
I am pleased the Labor Department is reviewing this standard, but
this can't be a constantly changing standard while long-term damage is
done to local entrepreneurship.
Mr. Speaker, I urge my colleagues to support the joint employer
standard that protects workers and allows the franchise model to
flourish.
Mr. SCOTT of Virginia. Mr. Speaker, could you advise us as to how
much time is remaining on both sides.
The SPEAKER pro tempore (Mr. Coffman). The gentleman from Virginia
has 13\1/2\ minutes. The gentlewoman from North Carolina has 15
minutes.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 15 seconds.
Mr. Speaker, I include in the Record page 50 of the committee report,
which outlines the exchange with Mr. Braddy, which suggests that the
franchisors do not become joint employers under the present law.
In an exchange between Representative Guthrie and Ed
Braddy, a Burger King franchisee testifying on behalf of the
International Franchise Association, Mr. Braddy was asked:
Representative Guthrie: Do you or do [sic] the franchisor
hire and fire and determine the work of your employees?
Mr. Braddy: I schedule interviews every other Wednesday. I
sit down with eight people every other Wednesday. Even though
I am not hiring, I do the interviews because I always like to
have a waiting list of people who want to work. So I do all
the hiring. I don't allow my managers or my assistants to
terminate anyone because I want to make sure that once I let
someone go it is for a good reason.
Mr. Guthrie: But it is you as the business owner, not the--
what role does the franchisor play in any of your--those
issues?
Mr. Braddy: None at all.
Based on this testimony, nothing in the Browning Ferris
decision could establish that these franchisors are
exercising sufficient control to be deemed a joint employer
with their respective fanchisees.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 2 minutes to the
gentlewoman from Connecticut (Ms. DeLauro), the ranking member of the
Labor-Health and Human Services Appropriations Subcommittee.
Ms. DeLAURO. Mr. Speaker, I rise in strong opposition to this bill,
which would overturn the National Labor Relations Board's joint
employer decision. It will make it harder for working people to hold
employers accountable for abuses, including making it harder to bring
Equal Pay Act claims.
In 2015, the National Labor Relations Board ruled in their Browning-
Ferris decision that a company can be held liable for labor violations
by other employers they contract with.
This definition of joint employers reflects the reality that
subcontractors in the workforce face today. In fact, according to the
Economic Policy Institute: ``The most rigorous recent estimates find
that the share of workers being subcontracted out was 15.8 percent in
late 2015. In today's labor market, that translates into roughly 24
million workers.''
The bill we are debating today would fly in the face of the 2015
decision, undermining employee protections.
This bill would create a more narrow and restrictive definition of a
joint employer; it would limit workers' ability to hold employers
responsible for violations under the National Labor Relations Act, such
as attempts to stop collective bargaining; or the Fair Labor Standards
Act, such as wage theft, equal pay violations.
Let me talk about what this would mean in just one area: pay
discrimination. Pay discrimination in the workplace is real; it is
happening everywhere.
{time} 1715
Pay inequity does not just affect women; it affects children,
families, and our economy as a whole. That is because women in this
country are the sole or co-breadwinners in half of the families with
children.
The biggest problem facing our Nation today is that families are not
making enough to live on. They are not being paid enough in the jobs
that they have. Closing the wage gap would help to address that
problem.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. SCOTT of Virginia. I yield the gentlewoman from Connecticut an
additional 1 minute.
Ms. DeLAURO. Why would we further undermine a worker's ability to
bring pay discrimination cases against their employer? We must stand
with workers, defend the current definition of joint employers.
To those who claim that joint employer status is burdensome or
confusing for companies, let me just ask you: What about the burden on
millions of Americans who are experiencing pay disparity and pay
discrimination?
I urge my colleagues, reject this bill. Take a stand for equal pay,
for equal work.
Mr. Speaker, I include in the Record a letter from our labor leaders
rejecting H.R. 3441.
July 28, 2017.
Dear Representative: We, the undersigned unions
representing millions of American workers, are writing to
urge you to not support H.R. 3441, the joint employer bill
introduced by Representatives Bradley Byrne and Chairwoman
Virginia Foxx of the House Committee on Education and the
Workforce, which would eliminate the National Labor Relation
Board's (NLRB) decision in Browning-Ferris, and greatly
restrict the definition of employer under the Fair Labor
Standards Act. Congress should be working to strengthen the
rights of working people and raise wages. The legislation
would accomplish the opposite.
Over the past few decades, the middle class has been
struggling to stay afloat. As wages have often been stagnant
or declining, more and more companies have used middlemen
from staffing agencies, labor contractors and to
subcontractors to maintain low wages, avoid accountability
and prevent a large percentage of workers from organizing. It
is important that when workers try to remedy illegal
employment practices or organize to join a union that the
party calling the shots is at the table and part of the
remedy. And indeed, the current state of the law under both
under the National Labor Relations Act and the FSLA balances
the interests of workers and employers by requiring a fact
specific inquiry to determine whether or not there is a joint
employer relationship.
This bill seeks to legislate around a century of consistent
case law and established joint employer standards in labor
and employment law. It redefines the term 'employer' so
narrowly that many workers will have no remedy when their
employers violate their union rights or wage laws.
The legislation would overturn the Browning Ferris NLRB
decision, a case which found a joint employer relationship
between Browning Ferris and Leadpoint their subcontractor. In
this case, Browning-Ferris, Inc. (BFI), the employer,
controlled the speed of the conveyor belt where employees of
contractor Leadpoint sorted materials, prohibited Leadpoint
from raising wages above a specified cap without BFI's
permission, and determined the shift times and the number of
people on shifts. Since Leadpoint was unable to negotiate
these employment terms among others without BFI approval, the
NLRB found BFI must be at the bargaining table along with its
subcontractor in order for the union to negotiate a
meaningful collective bargaining agreement. The decision was
fact specific and in keeping with the realities of today's
workplace.
Further, the bill would drastically change the definition
of employment relationships under the FLSA which recognizes
that more than one business can be an employer. Currently,
under the FLSA employers cannot hide behind labor contractors
or franchisees, when they set critical conditions of
employment. Because the Migrant and Seasonal Agricultural
Worker Protection Act refers to the definition of ``employ''
in the FLSA, this bill will also impact farm workers seeking
to redress wage theft and other employment abuses. It is the
FLSA definition of employ that has allowed workers to
effectively enforce child labor and other laws and to
effectively address sweatshops for decades. Today, it is this
definition that offers workers hope that when they organize
for a union and better wages that the party that can actually
effectuate change is at the table.
We urge you to weigh the interests of workers and stand
with them in opposing legislation that would rollback the
NLRB's decision and restrict workers' rights under the law.
Sincerely,
International Brotherhood of Teamsters (IBT).
Service Employees International Union (SEIU).
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW).
United Farm Workers of
[[Page H8575]]
America (UFW).
United Food & Commercial Workers International Union (UFCW).
United Steelworkers (USW).
Ms. FOXX. Mr. Speaker, I yield 1 minute to the distinguished
gentleman from Kansas (Mr. Estes).
Mr. ESTES of Kansas. Mr. Speaker, I rise today in support of H.R.
3441, the Save Local Business Act.
Too often, under the previous administration, radical policy shifts
were taken by unelected bureaucrats and activist judges, which harmed
our society. An example of this was in 2015, when the National Labor
Relations Board decided to unilaterally change a longstanding
definition of what constitutes an employer-employee relationship. That
changed the definition of a joint employer from an employer that has
``actual, direct, or immediate'' control over the terms and conditions
of employment to someone who has ``potential'' or ``indirect'' control.
It should be obvious to you who your employer is. It is the one who
hired you and who signs your paycheck.
As Chairwoman Foxx said in a recent op-ed: ``When you have a hammer,
everything looks like a nail.'' That is so true for so many in
Washington.
I encourage my colleagues to support this bill because it defines
joint employer in a commonsense way in order to do away with the
current, convoluted status. This bill will also prevent future
overreach from bureaucrats, and allows businessowners to manage their
own businesses.
Mr. SCOTT of Virgina. Mr. Speaker, I yield 1 minute to the gentleman
from Pennsylvania (Mr. Brendan F. Boyle).
Mr. BRENDAN F. BOYLE of Pennsylvania. Mr. Speaker, this bill, H.R.
3441, cripples the right to bargain for better wages and conditions
when workers have joint employers. By narrowing the definition of a
joint employer, this bill deprives thousands of workers of their right
to negotiate with the parties that really exercise control over their
wages and conditions; and by undermining collective bargaining, this
bill suppresses wages.
One of the biggest problems, if not the biggest problem in the
economy today, has been the lack of wage growth over the last decade to
two decades. This bill will not improve that problem. It will take an
existing problem and make it worse.
Today, workers are under a direct threat from reckless, misleading
legislation like this; and that, ultimately, will do nothing to improve
their wages, improve their benefits, or improve their working
conditions.
Let's reject this bill and, instead, discuss and debate and craft
legislation that can improve workers' wages.
Ms. FOXX. Mr. Speaker, I yield 1 minute to the gentleman from Florida
(Mr. Francis Rooney).
Mr. FRANCIS ROONEY of Florida. Mr. Speaker, I thank Chairman Foxx and
Subcommittee Chairman Byrne for bringing forth this important
legislation, the Save Local Business Act.
Construction is a major employer in the U.S. economy, with over 6
million employees, 650,000 employers, creating over $1 trillion worth
of construction every year.
Building a project involves a complex web of subcontractors, vendors,
and consultants all working together in a spirit of teamwork to
accomplish a difficult task.
I have been in this business for 40 years. The general contractor has
to put control terms in its subcontracts and purchase orders to make
sure that the subcontractors and vendors execute the work safely, on
schedule, and in coordination with the other trades on the project.
Lastly, they have to follow all the fitness-for-duty provisions to make
sure that they pass drug tests and deal with smoking and health safety
issues like that.
These requirements run right into this Browning-Ferris standard.
There is no way that you could follow the literal words of those court
cases and this horrible Obama rule and not have the argument made to
you that all these subs and vendors are part of a common enterprise.
Now employers, including myself and my employees, are left in a big
quandary as to their status under Browning-Ferris, under the Obama
rule. I can see a scenario where a batch plant located clear across
town from a construction project could have a hazardous waste problem.
Because of this ridiculous rule, my job or someone else's job using
that batch plant to supply concrete could be linked to them. How
perverse is that?
So the Save Local Business Act will fix this abuse and be beneficial
not only to the American economy, but to the safety and well-being of
American workers. I urge my colleagues to support this practical fix to
this egregious action, and I thank Chairman Byrne for introducing this
legislation.
Mr. SCOTT of Virgina. Mr. Speaker, I yield 1 minute to the
gentlewoman from Ohio (Ms. Kaptur).
Ms. KAPTUR. Mr. Speaker, I rise in opposition to this bill, which
basically says companies should be protected, not workers.
Imagine, when a firm is jointly owned and operated by the Chinese or
the Mexicans or the El Salvadorans, where workers' rights are never
protected.
Worker protections in America have long accounted for the reality
that the company who writes the check isn't always the company that
controls workplace conditions, but if they share control over workplace
conditions, they should be held jointly responsible for violations.
I include in the Record a letter from the United Auto Workers talking
about the parts industry.
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America--UAW,
Washington, DC, November 7, 2017.
Dear Representative: On behalf of the more than one million
active and retired members of the International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), I strongly urge you to oppose H.R. 3441, the
``Save Local Business Act.'' This ill-conceived bill would
make it more difficult for workers to join together and
collectively bargain to improve working conditions and raise
living standards. This is a bad bill for working people
because it would make it even easier for businesses to
replace full time jobs with precarious temporary employment.
H.R. 3441 overturns long established case law and joint
employer standards found in labor and employment law. It does
this by redefining the term `employer' in a way that would
make it nearly impossible for workers to hold their employers
accountable when their rights are violated.
Disturbingly, businesses and large corporations throughout
our economy have avoided responsibility to their employees by
hiding behind staffing agencies to claim they are not
technically their employer. The net result for working people
has been lower wages and fewer job protections. For example,
within the auto parts manufacturing sector, the National
Employment Law Project (NELP) estimates that temporary
workers earn, on average, 29% less than direct employees of
manufacturers. We have seen how, in the automotive sector,
multinational corporations often hire temporary workers, who
work side by side, doing the same job, for years, with full
time workers and earning significantly less.
H.R. 3441 would also overturn the National Labor Relations
Board's (NLRB) in Browning-Ferris. The Browning-Ferris
decision was good for working families because it established
that workers could negotiate with their true employer under
fact specific circumstances. In that case, a subcontractor
for Browning-Ferris Industries (BFI), Leadpoint, was unable
to negotiate several basic employment terms without
permission from BFI. The NLRB sensibly found that BFI must be
at the bargaining table along with its subcontractor
Leadpoint. Under the terms of this bill, that would not be
the case when similar disputes arise in the future.
Economic inequality and a shortage of good paying jobs has
hurt working people and our economy for decades.
Unfortunately, H.R. 3441 would make a bad situation worse.
Congress should reject this bill and instead work to create
more jobs you can sustain a family on.
Sincerely,
Josh Nassar,
Legislative Director.
Ms. KAPTUR. Mr. Speaker, there couldn't be a more dangerous industry
to work in. Do you want to put some of these foreign companies in
charge of worker safety in those places? Not I. I have seen too many
mangled bodies in places around the world that tell me no.
I am for workers being protected as well as the interests of
corporations. Today's action eliminates 80 years of safeguards,
safeguards on joint employer responsibility.
What does that mean? It means that a company that subcontracts or
franchises work to save a buck can shield
[[Page H8576]]
itself when workers aren't paid fair wages or are denied basic
employment rights.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. SCOTT of Virgina. I yield the gentlewoman from Ohio an additional
30 seconds.
Ms. KAPTUR. Small businesses and workers suffer while large corporate
interests escape accountability.
Mr. Speaker, it is time we pass laws that help American workers.
Wouldn't that be a sea change in this country?
I urge my colleagues to oppose this legislation.
Ms. FOXX. Mr. Speaker, I yield 1 minute to the distinguished
gentleman from Michigan (Mr. Mitchell).
Mr. MITCHELL. Mr. Speaker, I rise to urge support for H.R. 3441, the
Save Local Business Act.
I spent my career in business, so I know how damaging uncertainty is
for businesses. Job creators need a clear understanding of the rules;
otherwise, businesses and employees suffer and our economy suffers.
In yet another incident of unelected bureaucrats overreaching their
authority, the NLRB redefined the rule defining joint employers which
had been in place for 30 years. Unfortunately, I was not surprised.
The NLRB created a maze of uncertainty. Basic business decisions
managed between employers and employees are now put into turmoil by the
NLRB redefining what an employer is.
The Save Local Business Act would roll back a convoluted joint
employer scheme, restore a commonsense definition of employer, and
protect workers and local employees who are most likely to be impacted
by yet another confusing Federal rule.
I urge support of the bill.
Mr. SCOTT of Virgina. Mr. Speaker, I yield 2 minutes to the
gentlewoman from Illinois (Ms. Schakowsky).
Ms. SCHAKOWSKY. Mr. Speaker, once again the Republican majority is
offering a bill that would harm working families. It has nothing to do
with saving local businesses, small businesses, and has everything to
do with limiting workers' rights and taking away workers' wages.
Between 2005 and 2015, 94 percent of net job growth was in
alternative work like temporary, contract, and on-call jobs. This isn't
our parents' workplace anymore, where one employer sets the rules and
pays the wages. Today, a corporation can set workplace rules while a
temp agency or subcontractor pays the wages. Today's workers need to be
able to bargain with both and to hold each accountable for labor law
violations.
Instead, this bill moves us backward. It would prevent working men
and women from bargaining for better wages and benefits and safer
working conditions with the corporations that have decisionmaking power
over their workplace.
It would allow corporations to rob working women and men of their
earned wages without giving those workers the right to recover. The
annual cost of wage theft is estimated at $50 billion this year.
It would immunize bad corporate actors and put small and big
businesses who respect their workers at a competitive disadvantage.
This bill is a bad deal, and workers know it.
I include in the Record a letter from the AFL-CIO and its 12 million
members.
If you support better wages and better jobs, vote ``no'' on this bad
bill.
AFL-CIO
Washington, DC, November 6, 2017.
Legislative Alert
Dear Representative: On behalf of the 12 million working
women and men represented by the unions of the AFL-CIO, I am
writing to urge you to oppose H.R. 3441, the ``Save Local
Business Act.''
Proponents of the legislation claim that it is designed to
repeal the National Labor Relations Board's (NLRB's) 2015
decision in Browning Ferris Industries, in which the NLRB
clarified its legal test for determining whether two
employers are joint employers of certain employees. In fact,
H.R. 3441 rolls back worker protections so they are weaker
than when Congress adopted the National Labor Relations Act
in 1935 and the Fair Labor Standards Act in 1938. It is
harmful legislation that will undermine workers' pay and
protections on the job.
Browning Ferris concerned a group of workers on a recycling
line at a facility owned and operated by Browning Ferris. The
workers were supplied by a staffing agency--Leadpoint.
Browning Ferris controlled the facility, set the hours of
operation, dictated the speed of the recycling line,
indirectly supervised the line workers, and had authority
over numerous other conditions of employment. In order to
ensure that the employees' right to form a union and bargain
over workplace issues was protected, the NLRB held that
Browning Ferris was a joint employer of the line workers
along with Leadpoint. This fact-intensive decision reflected
the realities of the arrangement at Browning Ferris and was
rightly decided in order for the line workers to have a
meaningful right to bargain over their terms and conditions
of employment.
Before the ink was dry on the Browning-Ferris decision,
business groups and Republicans in Congress began attacking
the decision, claiming it dramatically changed the law and
undermined the franchise business model. (Browning Ferris is
not a franchise case, a fact specifically noted by the NLRB
in its decision).
In our view, these attacks on the Browning Ferris decision
are overblown and misguided. In today's fragmented
workplaces, with perma-temps, contracted workers, agency
employees, and subcontracting becoming ever more prevalent,
it is more important than ever to make sure our laws protect
workers and ensure they receive the wages they are due and
that their right to join with their co-workers to bargain for
improvements on the job is protected.
H.R. 3441 takes the law in the opposite direction,
radically changing both the National Labor Relations Act and
the Fair Labor Standards Act by instituting a new test for
finding employers to be joint employers that is more
restrictive than any agency or court has ever adopted. As a
practical matter, the legislation eliminates joint employment
from the NLRA and the Fair Labor Standards Act, meaning that
many workers in subcontracting or staffing agency
arrangements will be left without recourse for wage theft and
will have no meaningful bargaining rights. The bill weakens
worker protections and allows corporations to evade their
responsibilities under the law.
We urge you to reject this harmful and misguided proposal.
Sincerely,
William Samuel,
Director,
Government Affairs Department.
Ms. FOXX. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from
Pennsylvania (Mr. Smucker).
Mr. SMUCKER. Mr. Speaker, I rise today to express my strong support
for H.R. 3441, the Save Local Business Act.
I have heard from employers across my district in many industries--
agriculture, higher ed, staffing agencies, hospitality, and
construction--about this issue. Under the flawed NLRB standard, not
only employers are confused, but employees, as well, have little
certainty as to their status with multiple employers.
Mr. Speaker, for 25 years, I owned and operated a construction
company in Lancaster County, and we were operated as subcontractors.
Back then, the employer-employee relationship was clear. There was no
question about which employer was responsible for each employee.
The Browning-Ferris decision creates confusion about who works for
whom, discouraging many larger contractors from giving small
subcontractors a job for fear of increased liability. Mr. Speaker, had
that existed when I was growing a company, it would have made it more
difficult to expand our business and create more jobs in our community.
The Browning-Ferris decision was politically motivated and upended a
decades-old standard that worked very well among employers and
employees. According to the HR Policy Association, litigation regarding
the joint employer standard is at a record high. This decision, Mr.
Speaker, has been a jackpot for trial lawyers.
It is time Congress takes action to provide clarity for the thousands
of businesses, both large and small, who are ready to expand and create
jobs. The Save Local Business Act will provide this clarity, and I urge
my colleagues to support this important legislation.
Mr. SCOTT of Virgina. Mr. Speaker, I yield 1 minute to the gentleman
from Illinois (Mr. Lipinski).
Mr. LIPINSKI. Mr. Speaker, yes, there is now uncertainty about the
definition of joint employer. This uncertainty has the potential to
undermine the franchise model, which has given so many Americans the
opportunity to own a business and create millions of jobs.
But this bill goes too far in narrowing the joint employer definition
and also applying it to the Fair Labor Standards Act. We need to ensure
that workers are treated fairly and companies are held accountable, but
I am afraid this bill could weaken that.
[[Page H8577]]
While I will be voting against this bill, it is important to
recognize that there is a real issue here. We need to find a
compromise. So no matter how we vote today, I urge my colleagues to
listen to the concerns of businessowners in their districts because
their success is critical to our long-term job growth.
{time} 1730
Ms. FOXX. Mr. Speaker, I yield 1 minute to the distinguished
gentleman from Wisconsin (Mr. Grothman).
Mr. GROTHMAN. Mr. Speaker, before launching into specific comments on
this bill, I would like to correct some misconceptions that we heard
earlier today.
We just heard a lady from Illinois mention that she felt this bill
would put employers who respect workers at a competitive disadvantage.
All good employers know that respecting workers puts you at a
competitive advantage, and I think it is very wrong that anybody would
imply that you are advantaged by not respecting your workers. So I want
to clarify that.
The second thing I want to clarify is, earlier we had somebody talk
about temporary workers. Now, temporary workers make less money. It is
true with temporary workers, you have a middleman who takes the money
off the top, and that is unfortunate. But you have to realize that the
reason we have more temporary workers is we make it harder and harder
to be an employer in the first place. Whenever you make it harder and
harder to be an employer, you force more employers to hire temporary
employees so they don't have to be employers in the first place.
The SPEAKER pro tempore. The time of the gentleman has expired.
Ms. FOXX. Mr. Speaker, I yield an additional 1 minute to the
gentleman from Wisconsin.
Mr. GROTHMAN. Mr. Speaker, now, on with this bill. One of the
tragedies we have had in America is the disappearance of small
businesses in America. We had more and more big businesses, you know,
big conglomerates. One of the ways you can still be a small business is
being a franchisee in which you control your own destiny and are able
to respect your workers in your own way.
We have to pass this bill to prevent the end--or the practical end of
the ability to be your own businessowner by controlling or setting your
own contract terms with your own employees. And more than any other
reason, that is why I back this bill. I like that we have so many
small-business men out there on their own on the franchisor-franchisee
model.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 1 minute to the gentleman
from Massachusetts (Mr. Lynch).
Mr. LYNCH. Mr. Speaker, I thank the gentleman from Virginia (Mr.
Scott) for yielding me this time, and I thank him for his leadership on
behalf of the America workers.
Mr. Speaker, I rise to express my strong opposition to H.R. 3441.
Because of the modern use of temporary staffing agencies and
subcontractors, the National Labor Relations Board has properly defined
the term ``joint employer'' as two or more businesses who codetermine
or share control over a worker's terms of employment, such as rate of
pay or work schedule.
If enacted, H.R. 3441 would cripple workers' rights to collectively
bargain or seek redress when workers are found to have joint employers.
The opportunity to collectively bargain over wages and conditions of
employment is diminished if some parties that control employment are
given the option to refuse to bargain and avoid liability as employers.
As a result, this bill will open the door to widespread wage theft
and equal-pay violations, and it will harm workers across the United
States.
Some of my Republicans continue to argue that H.R. 3441 will provide
stability for workers. As a former union president and as a labor
attorney dealing with issues before the National Labor Relations Board,
I urge my colleagues to stand with the American worker and oppose this
disastrous bill.
Ms. FOXX. Mr. Speaker, I yield 1 minute to the gentleman from Georgia
(Mr. Ferguson), our distinguished colleague.
Mr. FERGUSON. Mr. Speaker, I rise today in support of the Save Local
Business Act. I have heard from dozens of businesses and employees in
my district that have faced uncertainty under the expanded joint
employer definition, which threatens job creation, it increases costs,
and discourages entrepreneurs from opening up new businesses.
The National Labor Relations Board's decision ignored decades of
settled labor policy by changing the joint employer definition and
putting all businesses and their workers at risk. We should be making
America the most competitive place in the world to do business, not
saddling our job creators with unnecessary and confusing regulations.
This bill would take the right step to reinstate sound, widely
accepted standards, and I urge all of my colleagues to support its
passage.
Mr. SCOTT of Virginia. Mr. Speaker, how much time is remaining for
both sides?
The SPEAKER pro tempore. The gentleman from Virginia has 4 minutes
remaining, and the gentlewoman from North Carolina has 7\1/2\ minutes
remaining.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 2 minutes to the
gentlewoman from Oregon (Ms. Bonamici), the ranking member of the
Committee on Education and the Workforce.
Ms. BONAMICI. Mr. Speaker, I thank Ranking Member Scott for yielding.
Mr. Speaker, I rise in opposition to the so-called Save Local
Business Act. This administration and this Congress have already
weakened workplace protections that keep Americans safe from
discrimination at their jobs, and make sure that they receive fair pay
and provide additional opportunities to save for a secure retirement.
Joint employer provisions make sure that employers cannot escape
liability for violating worker protection laws. This standard makes our
laws on overtime pay, on safe workplaces, on minimum wage enforceable.
What this bill does not do is turn franchisors into employers unless
they act like employers. I spent years as a lawyer representing
franchisees, and I know this won't turn franchisors into employers.
Mr. Speaker, I include in the Record a letter from the Signatory Wall
and Ceiling Contractors Alliance. They oppose this bill because it
would put law-abiding small businesses at a competitive disadvantage
with unscrupulous companies that don't respect worker's rights and
don't pay workers the wages they have earned.
Signatory Wall and
Ceiling Contractors Alliance,
Saint Paul, MN, October 5, 2017.
Hon. Paul Ryan,
Speaker of the House,
House of Representatives, Washington, DC.
Hon. Nancy Pelosi,
Minority Leader,
House of Representatives, Washington, DC.
Dear Mr. Speaker and Leader Pelosi: I am writing on behalf
of the Signatory Wall and Ceiling Contractors Alliance
(SWACCA) to express our strong opposition to H.R. 3441, the
``Save Local Business Act.'' This legislation will not
benefit honest small businesses that create good jobs with
family-sustaining wages and benefits. It will actually place
such employers at a permanent competitive disadvantage to
unscrupulous companies that seek to thrive solely at the
expense of their workers and taxpayer-funded social safety-
net programs.
SWACCA is a national alliance of wall and ceiling
contractors committed to working in partnership with our
workers and our customers to provide the highest-quality,
most efficient construction services. Through the superior
training, skill, and efficiency of our workers SWACCA
contractors are able to provide both cost-effective
construction services and middle class jobs with health and
retirement benefits. Our organization prides itself on
representing companies that accept responsibility for paying
fair wages, abiding by health and safety standards, workers
compensation laws, and unemployment insurance requirements.
Unfortunately, however, we increasingly find ourselves
bidding against companies that seek to compete solely on the
basis of labor costs. They do so by relieving themselves of
the traditional obligations associated with being an
employer. The news is littered with examples of contractors
who have sought to reduce costs by willfully violating the
laws governing minimum wage, overtime, workers compensation
unemployment insurance, and workplace safety protections. The
key to this disturbing business model is a cadre of labor
brokers who claim to provide a company with an entire
workforce that follows them to job after job. It is a
workforce that the actual wall or ceiling contractor controls
as a practical matter, but for which it takes no legal
responsibility. In this model workers receive no benefits,
are rarely covered by workers compensation or unemployment
insurance, and are frequently not paid
[[Page H8578]]
in compliance with federal and state wage laws. The joint
employment doctrine is an important means for forcing these
unscrupulous contractors to compete on a level playing field
and to be held accountable for the unlawful treatment of the
workers they utilize.
As an association representing large, medium, and small
businesses, we oppose H.R. 3441 because it proposes a
radical, unprecedented re-definition of joint employment
under both the FLSA and the NLRA that goes far beyond
reversing the standard articulated by the NLRB in Browning-
Ferris or returning to any concept of joint employment that
has ever existed under the FLSA since the Act's passage. H.R.
3441's radical and unprecedented redefinition of joint
employment would proliferate the use of fly-by-night labor
brokers by ensuring that no contractor using a workforce
provided by a labor broker would ever be deemed a joint
employer. This is because the bill precludes a finding of
joint employment unless a company controls each ``of the
essential terms and conditions of employment (including
hiring employees, discharging employees, determining
individual employee rates of pay and benefits, day-to-day
supervision of employees, assigning individual work
schedules, positions and tasks, and administering employee
discipline)''. H.R. 3441 goes further by expressly
countenancing a company using labor brokers retaining control
of the essential aspects of the workers' employment in a
``limited and routine manner'' without facing any risk of
being a joint employer.
Simply put, H.R. 3441 would create a standard that would
surely accelerate a race to the bottom in the construction
industry and many other sectors of the economy. It would
further tilt the field of competition against honest, ethical
businesses. Any concerns about the prior administration's
recently-rescinded interpretative guidance on joint
employment under the FLSA or the NLRB's joint employment
doctrine enunciated in Browning-Ferris can be addressed in a
far more responsible manner. Make no mistake, H.R. 3441 does
not return the law to any prior precedents or standards. It
creates a radical, new standard. This standard will help
unethical employers get rich not by creating more value, but
instead by ensuring their ability to treat American workers
as a permanent pool of low-wage, subcontracted labor that has
neither benefits nor any meaningful recourse against them
under our nation's labor and employment laws.
On behalf of the membership of SWACCA, thank you in advance
for your attention to our concerns about this legislation.
Please do not hesitate to contact me if you have any
questions or require additional information.
Sincerely,
Timothy J. Wies,
President.
Ms. BONAMICI. Mr. Speaker, this legislation would leave workers
behind and would give a free pass to unscrupulous companies that
violate labor laws. Please oppose this legislation.
Ms. FOXX. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from
Virginia (Mr. Brat).
Mr. BRAT. Mr. Speaker, I rise today to enthusiastically support H.R.
3441, the Save Local Business Act. This bill will return clarity and
certainty to all businesses. Small-business owners all around
Virginia's Seventh Congressional District have been asking for tax and
regulatory relief that will free them from the tyranny of government
control.
Take, for example, two employers in my district: a home care
franchisee called BrightStar Care of Richmond, and a daycare center
called Rainbow Station at the Boulders.
Mark Grasser, president of BrightStar Care, had this to say to me
about the unworkable joint employer standard: ``We have a franchisor
who wants to work with a franchisee to provide services. Unfortunately,
that is not possible because that would violate the current joint
employer standard. This ends up hurting everyone in the process. This
standard is forcing employers and employees to make decisions that are
not best for everyone involved, but what is best to satisfy
government.''
John Sims, the owner of Rainbow Station at the Boulders, similarly
said this: ``Having the proposed standard reversed allows small
businesses like mine to thrive, knowing exactly where everyone
stands.''
I am happy to report that the House is taking a bold step forward on
defending businesses and workers today. The vague and convoluted joint
employer scheme enacted in the Browning-Ferris decision under the Obama
administration's National Labor Relations Board has caused employers
and employees harm.
Decades before the radical NLRB overturned what worked, businesses
and employees knew the rules and thrived. It is time to roll the
government back and return to what worked. Mr. Speaker, I urge my
colleagues to vote in favor of this legislation.
Mr. SCOTT of Virginia. Mr. Speaker, I am prepared to close, so I
reserve the balance of my time.
Ms. FOXX. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from
Tennessee (Mr. Kustoff).
Mr. KUSTOFF of Tennessee. Mr. Speaker, I rise today in support of the
Save Local Business Act, legislation that will protect our small
business operations and end harmful and excessive government overreach.
For 30 years, small businesses operated successfully under a joint
employer policy that was fair, stable, and crystal clear.
Unfortunately, in 2015, the National Labor Relations Board, under the
previous administration, decided to insert itself and overcomplicate
the important employer-employee relationship. The unelected bureaucrats
at the NLRB stifled small businesses when they decided to step in and
blur the lines of responsibility.
Sadly, our working families were impacted when the NLRB decided to
empower labor union special interests. The last thing our independent
businessowners need is more government red tape that will prevent them
from reaching their full potential.
The NLRB's expanded joint employer scheme discourages large companies
from doing business with our smaller local companies. The effects are
incredibly far-reaching. The expanded joint employer rule harms
countless industries across the country, particularly small
franchisees, construction companies, and service providers.
For example, ServiceMaster, a global company with more than 33,000
employees, has chosen to locate its headquarters in Memphis, Tennessee.
A great deal of my constituents work for ServiceMaster Franchise
Service Group, and the NLRB rule change has put their job security in
jeopardy.
We have all heard concerns from our constituents, and now we can do
something to get government off our backs. We must look out for
hardworking Americans and roll back these oppressive job-killing rules.
I am pleased that the Save Local Business Act will undo this
unreasonable regulatory burden, and I thank Congressman Byrne for his
leadership in this effort.
Ms. FOXX. Mr. Speaker, I yield 1 minute to the gentleman from Georgia
(Mr. Allen), another distinguished member from the committee.
Mr. ALLEN. Mr. Speaker, I rise today to support Congressman Byrne's
important legislation, the Save Local Business Act.
As a small-business owner myself for over 40 years, I know how
difficult it can be to wade through Federal, State, and local red tape.
Sometimes it feels like the government is against growing your
business. The Obama administration expanded the joint employer standard
under the Fair Labor Standards Act, blurring the lines of
responsibility for decisions affecting the daily operations of many
local businesses.
According to the American Action Forum, the joint employer scheme
could have resulted in 1.7 million fewer jobs. Luckily, President Trump
is a job creator, so he knows a job-killing regulation when he sees
one. Earlier this summer, his administration rescinded this terrible
rule.
However, we have to make sure no bureaucrat is empowered to redefine
a joint employer standard again. Small-business owners are already
facing an uphill battle. We should not be threatening the freedoms of
independent businesses, owners, and entrepreneurs, making it even
harder for them to achieve the American Dream. That is why I urge all
of my colleagues to support this legislation.
Ms. FOXX. Mr. Speaker, I understand my colleague from Virginia is
prepared to close. I reserve the balance of my time to close.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, in conclusion, this bill will undermine employees'
ability to secure recourse for unfair labor practices and wage theft
when there should be a joint employer. It undermines the workers'
freedom to negotiate for better wages in return for their work. It
inflicts damage to prime contractors who play by the rules and are
forced to compete against unscrupulous other employers who save money
by failing to pay wages. And it exposes franchisees to liabilities they
should
[[Page H8579]]
not have to shoulder alone because it allows franchisors to exercise
more control over franchisees without incurring any liability.
Mr. Speaker, therefore, I urge my colleagues to oppose the bill, and
I yield back the balance of my time.
Ms. FOXX. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, this legislation is a no-brainer. Today, Congress has a
chance to stand up for jobs, opportunity, and local businesses in each
of our districts. This legislation rolls back an unworkable joint
employer policy that is hurting both workers and employers. Contrary to
some of the misleading rhetoric we have heard today, nothing in this
bill undermines worker protections. In fact, the bill ensures workers
know exactly who their employer is under Federal law.
I urge all Members to do what is best for the workers and local job
creators in their district by voting in favor of H.R. 3441, the Save
Local Business Act.
Mr. Speaker, I yield back the balance of my time.
Mr. SABLAN. Mr. Speaker, I rise today in opposition to H.R. 3441.
The right of workers to collectively bargain under the National Labor
Relations Act is essential for them to secure fair wages and working
conditions. For workers to be able to bargain effectively they have to
have someone across the table to bargain with, the party or parties
that control their hours, wages, benefits and work environment.
Negotiation with themselves would be a futile exercise.
H.R. 3441 would eviscerate the definition of an employer to the point
that not only might the true employer not have to come to the table but
it might be possible that no employer would have to come to the table.
Current joint employer standards take into account modern hiring
trends, where about three million people work for temporary staffing
agencies, working for companies that do not directly pay them, and
ensure employee protections.
The recent NLRB General Counsel determination in Freshii--where a
restaurant franchisor with over 100 stores was not held to be a joint
employer because its control over its franchisees was generally limited
to brand standards and food quality and did not exercise control of the
terms and conditions of employment of its franchisee's employees--
illustrates the pathway available to franchisors. I am concerned that
this legislation actually harms franchisees by making them responsible
for decisions dictated by their franchisors.
I urge my colleagues to oppose H.R. 3441.
Mrs. COMSTOCK. Mr. Speaker, I rise today in support of the bipartisan
H.R. 3441, the Save Local Business Act, and the 1.7 million jobs it
would save on enactment.
This common-sense legislation, which I cosponsored, restores the
proper relationship which served small business owners for decades--
providing stability for employers and employees.
By enacting this legislation, small business owners in Northern
Virginia can again exercise control over the operations of their
business rather than dealing with additional legal complexity layered
on by the National Labor Relations Board.
With all members' support for this legislation to help Main Street,
Congress can correct the misdirected regulatory policies of the past
which were overly harmful for business operators, restrictive on
entrepreneurs, and resulted in increased cost's for consumers.
There are over 2,000 locally owned franchise businesses in my
district. After hearing the concerns of many of them at Abrakadoodle
headquarters in Sterling this past year, I am proud to stand up for
these job creators and support this legislation today.
I will continue to advocate for policies which promote local
ownership and control--and permit my constituents to strive for the
American dream.
I urge my colleagues to do the same--support the rule and vote in
favor of the underlying bill, H.R. 3441.
I commend the distinguished gentleman from Alabama, Mr. Byrne, and
the Committee on Education and the Workforce for their work on this
great bill.
The SPEAKER pro tempore (Mr. Russell). All time for debate has
expired.
Pursuant to House Resolution 607, the previous question is ordered on
the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
{time} 1745
Motion to Recommit
Ms. BONAMICI. Mr. Speaker, I have a motion to recommit at the desk.
The SPEAKER pro tempore. Is the gentlewoman opposed to the bill?
Ms. BONAMICI. I am in its current form.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Ms. Bonamici moves to recommit the bill, H.R. 3441, to the
Committee on Education and the Workforce with instructions to
report the bill back to the House forthwith with the
following amendments:
Page 3, line 21, strike the closed quotation marks and
following period and after such line insert the following:
``(C) Subparagraph (B) shall not apply when a franchisee
takes an action at the direction of a franchisor, and such
action by the franchisee violates this Act, in which case the
franchisor shall be considered a joint employer for purposes
of such violation.''.
Page 4, line 7, strike the closed quotation marks and
following period and after such line insert the following:
``(3) Paragraph (2) shall not apply when a franchisee takes
an action at the direction of a franchisor, and such action
by the franchisee violates this Act, in which case the
franchisor shall be considered a joint employer for purposes
of such violation.''.
The SPEAKER pro tempore. The gentlewoman from Oregon is recognized
for 5 minutes in support of her motion.
Ms. BONAMICI. Mr. Speaker, this is the final amendment to the bill.
It will not kill the bill or send it back to committee. If adopted, the
bill will immediately proceed to final passage, as amended.
Mr. Speaker, the bill we are debating today is another assault on
hardworking Americans who are desperately trying to put food on the
table for their families, scrape together enough money to pay for child
care, and have a roof over their heads.
My colleagues on the other side of the aisle are saying that they
need this bill to save local businesses. We all support local
businesses in our community. But my colleagues suggest that unless they
pass this law, franchisors will become joint employers. Well, if they
act like franchisors and control brands and standards, and they don't
do things like hire, fire, and supervise the franchisees' employees,
they won't be. In other words, if they act like a franchisor and not an
employer, they won't be considered a joint employer.
In fact, this bill could actually harm franchisees and take away
their independence because it would allow franchisors to indirectly
control the labor relations of its franchisees, but be insulated from
liability for violations that might arise from that control.
Now, my amendment would require that if a franchisor directs a
franchisee to take an unlawful action that would violate labor laws,
then the franchisor shall be considered a joint employer for the
purpose of the violation.
In other words, if a franchisor acts like an employer, then they
should be held accountable for their actions as an employer. Workers
must be able to get their hard-earned overtime pay and the wages they
are owed. This is common sense.
This motion would protect small businesses, promote the independence
of franchisees, and, importantly, cure the defect in the bill that
insulates franchisors from liability for exercising control over their
franchisees' labor or employment relations.
Mr. Speaker, this legislation currently is an attack on workers'
rights.
Mr. Speaker, I urge my colleagues to adopt my amendment, and I yield
back the balance of my time.
Ms. FOXX. Mr. Speaker, I rise in opposition to the motion to
recommit.
The SPEAKER pro tempore. The gentlewoman from North Carolina is
recognized for 5 minutes.
Ms. FOXX. Mr. Speaker, this motion is just another attempt to ignore
the real damage caused by the NLRB's expanded and unworkable joint
employer standard which continues to hurt local businessowners and
their workers.
Let's not get distracted by this motion. Instead, let's focus on the
bipartisan solution which is pending: H.R. 3441, the Save Local
Business Act, which simply restores a commonsense definition of
employer to provide certainty and stability for workers and employers.
Mr. Speaker, I urge my colleagues to vote ``no'' on the motion to
recommit and ``yes'' on the Save Local Business Act, and I yield back
the balance of my time.
[[Page H8580]]
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Ms. BONAMICI. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule
XX, this 15-minute vote on the motion to recommit will be followed by
5-minute votes on:
Passage of the bill, if ordered; and
The motion to suspend the rules and pass H.R. 3911.
The vote was taken by electronic device, and there were--yeas 186,
nays 235, not voting 11, as follows:
[Roll No. 613]
YEAS--186
Adams
Aguilar
Barragan
Bass
Beatty
Bera
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brown (MD)
Brownley (CA)
Butterfield
Capuano
Carbajal
Cardenas
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Correa
Courtney
Crist
Crowley
Cuellar
Cummings
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
DeSaulnier
Deutch
Dingell
Doggett
Doyle, Michael F.
Engel
Eshoo
Espaillat
Esty (CT)
Evans
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Gomez
Gonzalez (TX)
Green, Al
Green, Gene
Grijalva
Gutierrez
Hanabusa
Hastings
Heck
Higgins (NY)
Himes
Hoyer
Huffman
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Jones
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
Krishnamoorthi
Kuster (NH)
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Matsui
McCollum
McEachin
McGovern
McNerney
Meeks
Meng
Moore
Moulton
Murphy (FL)
Nadler
Napolitano
Neal
Nolan
Norcross
O'Halleran
O'Rourke
Pallone
Panetta
Pascrell
Payne
Perlmutter
Peters
Peterson
Pingree
Polis
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Rosen
Ruiz
Ruppersberger
Rush
Ryan (OH)
Sanchez
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Soto
Speier
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Titus
Tonko
Torres
Tsongas
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Welch
Wilson (FL)
Yarmuth
NAYS--235
Abraham
Aderholt
Allen
Amash
Amodei
Arrington
Babin
Bacon
Banks (IN)
Barletta
Barr
Barton
Bergman
Biggs
Bilirakis
Bishop (MI)
Bishop (UT)
Blackburn
Blum
Bost
Brady (TX)
Brat
Brooks (AL)
Brooks (IN)
Buchanan
Buck
Bucshon
Budd
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Cheney
Coffman
Cole
Collins (GA)
Collins (NY)
Comer
Comstock
Conaway
Cook
Costa
Costello (PA)
Cramer
Crawford
Culberson
Curbelo (FL)
Davidson
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Diaz-Balart
Donovan
Duffy
Duncan (SC)
Duncan (TN)
Dunn
Emmer
Estes (KS)
Farenthold
Faso
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gaetz
Gallagher
Gianforte
Gibbs
Gohmert
Goodlatte
Gosar
Gottheimer
Gowdy
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Griffith
Grothman
Guthrie
Handel
Harper
Harris
Hartzler
Hensarling
Herrera Beutler
Hice, Jody B.
Higgins (LA)
Hill
Holding
Hollingsworth
Huizenga
Hultgren
Hunter
Hurd
Issa
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Johnson (OH)
Johnson, Sam
Jordan
Joyce (OH)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
King (NY)
Kinzinger
Knight
Kustoff (TN)
Labrador
LaHood
LaMalfa
Lamborn
Lance
Latta
Lewis (MN)
LoBiondo
Long
Loudermilk
Love
Lucas
Luetkemeyer
MacArthur
Marchant
Marino
Marshall
Massie
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
McMorris Rodgers
McSally
Meadows
Meehan
Messer
Mitchell
Moolenaar
Mooney (WV)
Mullin
Newhouse
Noem
Norman
Nunes
Olson
Palazzo
Palmer
Paulsen
Pearce
Perry
Pittenger
Poe (TX)
Poliquin
Posey
Ratcliffe
Reed
Reichert
Renacci
Rice (SC)
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Francis
Rooney, Thomas J.
Ros-Lehtinen
Roskam
Ross
Rothfus
Rouzer
Royce (CA)
Russell
Rutherford
Sanford
Scalise
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (NJ)
Smith (TX)
Smucker
Stefanik
Stewart
Stivers
Taylor
Tenney
Thompson (PA)
Thornberry
Tiberi
Tipton
Trott
Turner
Upton
Valadao
Wagner
Walberg
Walden
Walker
Walorski
Walters, Mimi
Weber (TX)
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IA)
Zeldin
NOT VOTING--11
Black
Brady (PA)
Bridenstine
Bustos
Ellison
Garrett
Hudson
Johnson, E. B.
Pelosi
Pocan
Roybal-Allard
{time} 1814
Ms. STEFANIK, Messrs. POSEY, THOMAS J. ROONEY of Florida, BRADY of
Texas, and Mrs. COMSTOCK changed their vote from ``yea'' to ``nay.''
Messrs. THOMPSON of Mississippi, KENNEDY, and HIGGINS of New York
changed their vote from ``nay'' to ``yea.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded
The SPEAKER pro tempore (Ms. Cheney). The question is on the passage
of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. SCOTT of Virginia. Madam Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 242,
noes 181, not voting 9, as follows:
[Roll No. 614]
AYES--242
Abraham
Aderholt
Allen
Amash
Amodei
Arrington
Babin
Bacon
Banks (IN)
Barletta
Barr
Barton
Bera
Bergman
Biggs
Bilirakis
Bishop (MI)
Bishop (UT)
Blackburn
Blum
Bost
Brady (TX)
Brat
Brooks (AL)
Brooks (IN)
Buchanan
Buck
Bucshon
Budd
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Cheney
Coffman
Cole
Collins (GA)
Collins (NY)
Comer
Comstock
Conaway
Cook
Correa
Costa
Costello (PA)
Cramer
Crawford
Cuellar
Culberson
Curbelo (FL)
Davidson
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Diaz-Balart
Donovan
Duffy
Duncan (SC)
Duncan (TN)
Dunn
Emmer
Estes (KS)
Farenthold
Faso
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gaetz
Gallagher
Gianforte
Gibbs
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Griffith
Grothman
Guthrie
Handel
Harper
Harris
Hartzler
Hensarling
Herrera Beutler
Hice, Jody B.
Higgins (LA)
Hill
Holding
Hollingsworth
Huizenga
Hultgren
Hunter
Hurd
Issa
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Joyce (OH)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
King (NY)
Kinzinger
Knight
Kustoff (TN)
Labrador
LaHood
LaMalfa
Lamborn
Lance
Latta
Lewis (MN)
LoBiondo
Long
Loudermilk
Love
Lucas
Luetkemeyer
MacArthur
Marchant
Marino
Marshall
Massie
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
McMorris Rodgers
McSally
Meadows
Meehan
Messer
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (FL)
Newhouse
Noem
Norman
Nunes
Olson
Palazzo
Palmer
Paulsen
Pearce
Perry
Peters
Peterson
Pittenger
Poe (TX)
Poliquin
Posey
Ratcliffe
Reed
Reichert
Renacci
Rice (SC)
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Francis
Rooney, Thomas J.
Ros-Lehtinen
Roskam
Ross
Rothfus
Rouzer
Royce (CA)
Russell
Rutherford
Sanford
Scalise
Schrader
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
[[Page H8581]]
Smith (NE)
Smith (NJ)
Smith (TX)
Smucker
Stefanik
Stewart
Stivers
Taylor
Tenney
Thompson (PA)
Thornberry
Tiberi
Tipton
Trott
Turner
Upton
Valadao
Wagner
Walberg
Walden
Walker
Walorski
Walters, Mimi
Weber (TX)
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IA)
Zeldin
NOES--181
Adams
Aguilar
Barragan
Bass
Beatty
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Capuano
Carbajal
Cardenas
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Courtney
Crist
Crowley
Cummings
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
DeSaulnier
Deutch
Dingell
Doggett
Doyle, Michael F.
Engel
Eshoo
Espaillat
Esty (CT)
Evans
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Gomez
Gonzalez (TX)
Gottheimer
Green, Al
Green, Gene
Grijalva
Gutierrez
Hanabusa
Hastings
Heck
Higgins (NY)
Himes
Hoyer
Huffman
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
Krishnamoorthi
Kuster (NH)
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Matsui
McCollum
McEachin
McGovern
McNerney
Meeks
Meng
Moore
Moulton
Nadler
Napolitano
Neal
Nolan
Norcross
O'Halleran
O'Rourke
Pallone
Panetta
Pascrell
Payne
Pelosi
Perlmutter
Pingree
Polis
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Rosen
Ruiz
Ruppersberger
Rush
Ryan (OH)
Sanchez
Sarbanes
Schakowsky
Schiff
Schneider
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Soto
Speier
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Titus
Tonko
Torres
Tsongas
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Welch
Wilson (FL)
Yarmuth
NOT VOTING--9
Black
Brady (PA)
Bridenstine
Ellison
Garrett
Hudson
Johnson, E. B.
Pocan
Roybal-Allard
{time} 1823
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table
____________________