[Congressional Record Volume 170, Number 79 (Tuesday, May 7, 2024)]
[House]
[Pages H2891-H2896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONGRESSIONAL DISAPPROVAL OF THE RULE SUBMITTED BY THE
NATIONAL LABOR RELATIONS BOARD RELATING TO ``STANDARD FOR DETERMINING
JOINT EMPLOYER STATUS''--VETO MESSAGE FROM THE PRESIDENT OF THE UNITED
STATES
The SPEAKER pro tempore (Mr. DesJarlais). Pursuant to the order of
the House of May 6, 2024, the unfinished business is the further
consideration of the veto message of the President on the joint
resolution (H.J. Res. 98) providing for congressional disapproval under
chapter 8 of title 5, United States Code, of the rule submitted by the
National Labor Relations Board relating to ``Standard for Determining
Joint Employer Status''.
The Clerk read the title of the joint resolution.
The SPEAKER pro tempore. The question is, Will the House, on
reconsideration, pass the joint resolution, the objections of the
President to the contrary notwithstanding?
(For veto messages, see proceedings of the House of May 6, 2024, at
page H2840.)
The SPEAKER pro tempore. The gentleman from Virginia (Mr. Good) is
recognized for 1 hour.
Mr. GOOD of Virginia. Mr. Speaker, for purpose of debate only, I
yield the customary 30 minutes to the gentleman from Virginia (Mr.
Scott), the ranking member on the Committee on Education and the
Workforce, pending which I yield myself such time as I may consume.
General Leave
Mr. GOOD of Virginia. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days to revise and extend their remarks
and include extraneous material on the veto message on H.J. Res. 98.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOOD of Virginia. Mr. Speaker, I rise today in support of
overriding President Biden's veto of H.J. Res. 98. A vote in favor of
this resolution will nullify the Biden administration's attempt to
redefine what it means to be a joint employer under the National Labor
Relations Act.
After receiving bipartisan support from both Chambers, Congress sent
H.J. Res. 98 to the President's desk showing our broad disapproval of
the new joint employer rule. Now, with President Biden's veto, the
message from the administration is clear: Franchise businesses are not
welcome partners in the Biden economy.
[[Page H2892]]
In fact, the Biden administration wants to return to the harm done
during the Obama-Biden administration, when this rule was first in
effect and cost the economy more than $30 billion and nearly 400,000
jobs on an annual basis for the 5-year period until President Trump,
thankfully, reversed the rule.
It also benefited the Democrats' favorite trial lawyers when lawsuits
against franchise businesses increased by 93 percent.
The joint employer rule overturns legal precedent that was in place
from 1984 to 2015. It is a direct attack on the thousands of small
businesses that make up the healthy and growing franchise sector.
Currently, a business is considered an employer only if they exercise
direct and immediate control over an employee's essential terms and
conditions of employment. However, the new rule establishes that two or
more businesses are in a joint employer relationship if one employer
merely exercises indirect control over another company's employees.
Under this standard, something as simple as a franchisor giving a
franchisee a company handbook could be interpreted as exercising
indirect control.
Changing the definition of who controls a business creates confusion
and threatens the independence of so many successful small business
owners.
Biden's rule will saddle franchisors with liability for independent
franchise owners, over which they do not have control. Inevitably, the
result of this rule will be less growth, more lawsuits, and the
functional transformation of businessowners into middle managers.
It is already very difficult to operate a small business today in
Biden's America. The administration's response to high inflation, low
workforce participation, and high interest rates, which are causing so
much economic hardship from Bidenomics, is to aggressively pursue an
anti-employer, antiworker, pro-union-boss agenda.
We must protect the model that is currently working for businesses
and eliminate the threat of this new rule.
Mr. Speaker, I urge my colleagues to vote in favor of overriding the
President's veto of H.J. Res. 98, and I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I thank my colleague from
Virginia for yielding time, and I yield myself such time as I may
consume.
I rise once again in strong opposition to H.J. Res. 98, the
Congressional Review Act resolution to repeal the National Labor
Relations Board's joint employer rule, which the board finalized last
October.
Workers should be able to negotiate for higher pay, better benefits,
and safer workplaces through their unions. Regrettably, this is not the
case for millions of Americans, including janitors, housekeepers,
cooks, and many others who are employed through subcontractors or temp
agencies.
The rise of what is called the fissured workplace, where firms
increasingly use overlapping arrangements of contracting,
subcontracting, and temping, has weakened workers' bargaining power and
allowed large corporations to evade bargaining obligations and
liabilities.
{time} 1430
For example, if an employee of a subcontractor unionized, the
subcontractor would be unable to actually bargain over pay, hours,
workplace safety, or other issues. That is because the actual contract
is with the prime contractor who essentially sets the terms and
conditions of employment for the employee, and the subcontractor is
just administering the terms of that contract. Bargaining with the
subcontractor becomes essentially useless because the subcontractor is
paid based on assumed wages, and they don't have the ability to change
those wages. The prime contractor needs to be at the table if someone
is thinking of negotiating wages at all.
Additionally, by evading bargaining obligations, the prime
contractor, who is actually setting some or all of the terms of
conditions of the work, can actually shift liability for an unfair
labor practice onto the subcontractor or the temp agency.
Mr. Speaker, the NLRB's new rule fixed the problem by ensuring
workers can negotiate with all entities who actually control their
working conditions. This also protects small businesses from being held
liable for labor violations that are a result of the larger firms'
actions.
This isn't about franchising. No franchiser has ever been found to be
a joint employer under any of the various joint employer rules,
including this one.
H.J. Res. 98 would undermine workers' ability to exercise their
rights and reinstate the deficient Trump-era rule that narrowed the
joint employer standard. Under the Trump-era standard, employers who
control the working conditions could easily evade their obligations to
collectively bargain with employees. That would have the effect of
reducing the earnings of workers.
According to the Economic Policy Institute, the Trump-era rule would
reduce workers' hard-earned paychecks by about $1.3 billion.
Conversely, the Biden joint employer rule is estimated to raise
workers' earnings.
So we should not go backwards. The Biden-Harris administration's
joint employer rule empowers workers and protects small businesses, so
I applaud President Biden for his veto of H.J. Res. 98.
So let's be clear. This is not about the joint employer rule. We have
already had that debate back in January.
This is a debate about the Republican majority's inability to do
basic arithmetic. Overriding the President's veto requires two-thirds,
or 290 Members, of the House. That is not going to happen. This measure
only passed with 206 votes, nearly all of them from Republicans, so
anybody who can count knows the Republican majority does not have the
votes to override the veto.
So why are we taking this up?
It is because we are just a metaphor for the Republicans' failed
agenda. Instead of taking time to do something constructive, we are
taking precious floor time on this doomed override vote when we could
be doing something better like raising the minimum wage, or making
workplaces safer and healthier, or ensuring women receive equal pay for
equal work, or combating child labor, or establishing paid sick leave,
or strengthening workers' ability to organize and collectively bargain.
However, that is not what we are doing. All that is happening now is
what has happened during the whole 118th Congress: the House majority
insists on spending floor time on votes like this that have no chance
of succeeding.
So House Democrats believe we can do better. We remain focused on the
priorities and others that lower costs and grow the middle class. That
is what we ought to be focused on.
Mr. Speaker, I reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this is and always will be about labor unions. That is
essentially what my friend from the Commonwealth of Virginia just said.
However, we need to go back to pro-growth policies when real wages were
growing for everyone, when unemployment was at a record low for
everyone, and there were millions more Americans working during the
Trump administration.
Bidenomics and Bidenflation don't work. This is a recession back into
the past here. It is not going to work. We are not responsible for what
the Senate does, Mr. Speaker. We are not responsible for what the White
House does. The Senate actually agreed with us on this on a bipartisan
basis, and the House did this on a bipartisan basis.
Mr. Speaker, I yield 5 minutes to the gentleman from Michigan (Mr.
James).
Mr. JAMES. I thank Mr. Good for yielding, and I appreciate the
opportunity to address my colleagues and you, Mr. Speaker.
It has been said that government doesn't create jobs, but they sure
know how to kill them.
I agree with that.
Listening to my colleagues here today, I have to restate, Mr.
Speaker, that the American Dream is worth fighting for.
Franchises create the surest and shortest path for entrepreneurs,
working people in my district, and all across the country to achieve
the American Dream. The reason we are here again is because we are
giving our colleagues the opportunity to tell the American people that
they will choose them and
[[Page H2893]]
their American Dream over the special interests and political
selfishness that choosing their own best interests may lead to.
The right to collectively bargain was established by this body in
1935, and the right to work was enshrined in Michigan's constitution
just last year. However, once again, the Biden administration has gone
too far.
Franchise businesses are the path out of situations for people in
urban America, rural America, and everywhere in between.
The Biden-led National Labor Relations Board resurrected a policy
that, when imposed during the Obama Administration, saw jobs lost and
dreams crushed. The last rule saw 376,000 lost job opportunities in the
franchise sector.
It was also said what might happen, what could happen, and what
should happen, and then I heard fixing a problem. It sounds like people
who have never had the chance to live under the rules they are creating
are now creating organizations and structures that they won't have to
live under. This is exactly the reason we were elected to come here to
represent our constituents' interests and not the interests here, Mr.
Speaker.
Thanks to President Biden's policies, we have inflation and
regulation, not success and determination.
My colleagues on this side of the aisle are willing to bet on America
and are willing to bet on the entrepreneurial spirit while also
respecting the right to collectively bargain without burdensome
regulations that we know stifle the American Dream.
The President's veto is clear.
Mr. Speaker, while the President and the Vice President go around the
country saying they are friends of small business, their administration
is literally putting policies in place that crush it.
The only reason our colleagues would not vote to override this veto
is because they are in lockstep with the administration, prioritizing
politics over people. They have the opportunity to vote along with us,
to overturn these harmful policies to allow Americans to self-determine
without threat to their right to collectively bargain.
This is a clear opportunity to get this right, and I hope my
colleagues on the other side will support our endeavor to do the right
thing for the people in our districts who, no doubt, shed blood, sweat,
and tears to make their dream a reality.
As our President seeks to make the case to the American people, he
should not assume that small business is the enemy.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I think we have to get some job numbers rather than just
adjectives and everything on the table.
The fact is that President Trump during his 4 years lost over 6
million jobs, but President Biden so far has created over 15 million,
the longest period of time with unemployment under 4 percent since the
1960s.
Before you start excusing President Trump because of a pandemic, he
had a pandemic for about 10 months, President Biden had a pandemic for
2 years.
So this legislation the President has vetoed, I think it is helpful
just to read the President's message of why he vetoed the resolution.
He said: ``I am returning herewith without my approval H.J. Res. 98,
a resolution that would disapprove of the National Labor Relations
Board's rule entitled `Standard for Determining Joint Employer Status.'
``Since day one, my administration has fought to strengthen workers'
right to organize and bargain for higher wages, better benefits, and
safer working conditions. The NLRB's rule would prevent companies from
evading their bargaining obligations or liability when they control a
worker's working condition--even if they reserve such control or
exercise it indirectly through a subcontractor or other intermediary.
If multiple companies control the terms and conditions of employment,
then the right to organize is rendered futile whenever the workers
cannot bargain collectively with each of those employers.
``Without the NLRB's rule, companies could more easily avoid
liability simply by manipulating their corporate structure, like hiding
behind subcontractors or staffing agencies. By hampering the NLRB's
efforts to promote the practice and procedure of collective bargaining,
Republicans are siding with union-busting corporations over the needs
of workers and their unions. I am proud to be the most pro-union, pro-
worker President in American history. I make no apologies for my
administration protecting the right to organize and bargain
collectively.
``Therefore, I am vetoing this resolution.
``Joseph R. Biden, Jr.''
Mr. Speaker, I reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I have to hand it to my friend from Virginia. He is
resilient, but he has got a tough job trying to defend the economic
record of the current administration.
We have got some 4 million people less working than were working when
he became President. Everyone knows that under the previous
administration, again, we had record-low unemployment and record-high
labor participation. Now we have a record-low labor participation rate.
We had unemployment that was at record lows for everyone during the
previous administration and real wage growth under the previous
administration.
Now we have 40-year high inflation. Inflation was nonexistent before
this President got into office. We have 20-year high interest rates
which are further crushing the American people. We have got our credit
being downgraded because of the reckless, excessive, wasteful, and
unprecedented spending which will cause interest rates to go even
higher.
Mr. Speaker, you can't fool the American people. You can't tell them
it is good when they know that it is bad. They are suffering at the
grocery store, they are suffering when they pay the utility bill, they
are suffering at the gas pump, they are suffering when they make the
mortgage payment or when they make the rent payment, and they are
suffering when they are unable to afford to buy a home, especially for
young people starting out.
This is all a direct result of bad policy from this President. This
is just one more example as he vetoes the will of the American people
reflected in a bipartisan manner by both Houses of Congress sending him
legislation to overturn this rule, and yet he has vetoed it and has
forced us to try to overcome his veto today.
Mr. Speaker, I am prepared to close if the gentleman from Virginia is
prepared to close, and I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, I include in the Record letters in opposition to this
resolution in support of the President's veto from SEIU, AFL-CIO, and
the Teamsters.
November 2, 2023.
Dear Representative: On behalf of the 12.5 million workers
represented by the AFL-CIO, the 2 million workers represented
by SEIU, and the 1.2 million workers represented by the
International Brotherhood of Teamsters, we write to urge you
to support the National Labor Relations Board's (``NLRB'' or
``the Board'') recent final rule addressing joint-employer
status under the National Labor Relations Act (``NLRA'' or
``the Act''). This important rule will ensure that workers
have a real voice at the bargaining table when multiple
companies control their working conditions. Accordingly, the
undersigned unions strongly oppose any effort to nullify or
weaken the rule, whether by legislation or resolution under
the Congressional Review Act.
The rule, published on October 27, 2023, rescinds the Trump
NLRB's 2020 joint-employer rule and replaces it with an
updated standard that is based on well-established common-law
principles and consistent with recent D.C. Circuit decisions
identifying critical flaws in the Trump NLRB's approach to
this issue. The Board's updated rule is welcome and necessary
because the Trump rule was harmful to workers' organizing
efforts, inconsistent with the governing legal principles,
and against the policies of the Act.
The crux of this issue is simple--when workers seek to
bargain collectively over their wages, hours and working
conditions, every entity with control over those issues must
be at the bargaining table. The Act protects and encourages
collective bargaining as a means of resolving labor disputes.
Collective bargaining cannot serve that purpose if companies
with control over the issues in dispute are absent from the
bargaining table. The Trump rule offered companies a roadmap
to retain ultimate control
[[Page H2894]]
over key aspects of workers' lives--like wages and working
conditions--while avoiding their duty to bargain. This
standard left workers stranded at the bargaining table and
unable to negotiate with the people who could actually
implement proposed improvements.
Companies are adopting business structures specifically
designed to maintain control over the workers who keep their
businesses running while simultaneously disclaiming any
responsibility for those workers under labor and employment
laws. Such businesses often insert second and third-level
intermediaries between themselves and their workers. These
companies seek to have it both ways--to control the workplace
like an employer but dodge the legal responsibilities of an
employer. This phenomenon is often called workplace
``fissuring.''
Fissured workplaces, sometimes involving staffing firms,
temp agencies, or subcontractors, often leave workers unable
to raise concerns, or collectively bargain with, the entity
that actually controls their workplace. In such arrangements,
multiple entities may share control over a worker's terms of
employment. For example, if employees of a subcontractor were
to unionize and bargain only with the subcontractor, it might
simply refuse to bargain over certain issues because its
contract with the prime contractor governs those aspects of
the work (e.g., pay, hours, safety, etc.). This harms workers
because the entity that effectively determines workplace
policy is not at the bargaining table, placing workers'
desired improvements out of reach.
The way to ensure that workers can actually bargain with
each entity that controls their work is to readily identify
such entities as ``joint employers.'' The Act requires joint
employers to collectively bargain with employees over working
conditions that they control. But the Trump NLRB's joint
employer rule was designed to help companies with such
control escape bargaining. The rule's standard for finding a
joint employment relationship was unrealistic and overly
narrow. It conditioned a company's joint employer status on
proof that it actually exercised substantial direct and
immediate control, discounting its reserved or indirect power
to control a small list of working conditions. This conflicts
with the governing common law principles, which make clear
that a company's power to control working conditions must
bear on its employer status (and thus its bargaining
responsibilities under the Act) regardless of whether it has
formally exercised that power. The new final rule correctly
rescinded the Trump rule.
Critics of the new rule claim that its joint employer
standard will outright destroy certain business models or
dramatically change operations. Opponents claim, for example,
that companies will be required to bargain over issues they
have no control over, or will be automatically liable for
another entity's unfair labor practices. This is simply
untrue and a further attempt to leave workers with no
opportunity to bargain with controlling entities. The final
rule makes it clear that a joint employer's bargaining
obligations extend only to those terms and conditions within
its control. And current Board law--unchanged by the rule--
only extends unfair labor practice liability to a joint
employer if it knew or should have known of another
employer's illegal action, had the power to stop it, and
chose not to.
Similarly, critics claim that the new standard imposes
blanket joint employer status on parties to certain business
models like franchises, temp agencies, subcontractors, or
staffing firms. This is also untrue. The rule does not
proclaim that all franchisors are now joint employers with
their franchisees, or that any company using workers from a
temp agency is automatically their employer. The particular
business model used by parties in any case is not
determinative. Instead, the Board looks at every case
individually, and grants companies a full and fair
opportunity to explain the underlying business relationship
and dispute whether they control the relevant workers'
essential terms and conditions of employment. The Board
conducts a fact-specific, case-by-case analysis that
considers whether the putative joint employer controls
essential terms and conditions of employment.
Make no mistake, the Board's rule may well result in the
employees of a staffing firm, for example, being treated also
as employees of the firm's client, but only if the client
controls the employees' terms and conditions of employment.
That is the only way workers can meaningfully bargain at
work. But even in that situation, the workers are deemed
employees only for purposes of the NLRA and collective
bargaining, and the client would be obligated to bargain only
about the terms it controls. It would still be up to workers
to choose whether they want to organize a union and
collectively bargain with their employer or employers.
Nothing in the NLRB's rule alters employers' responsibilities
under any other state or federal law (e.g., tax laws, wage
and hour laws, or workplace safety laws) or requires any
changes to business structures. But it does make clear their
responsibility under the NLRA to show up at the bargaining
table.
The new rule is clear and commonsense: there is no
bargaining obligation for an entity that cannot control
workplace policies or working conditions. And for good
reason--their presence at the bargaining table would be
pointless. Workers have no interest in bargaining with a
company that lacks the power to implement the workplace
improvements they seek.
This rule simply invokes a more realistic joint employer
standard on par with the standard enforced during the Obama
administration, allowing a company's indirect or reserved
control over working conditions to be sufficient for finding
joint employer status. Workers' right to collectively bargain
cannot be realized if the entity that has the power to change
terms and conditions of employment is absent from the
bargaining table.
For the reasons explained above, the undersigned unions
oppose any effort to nullify the Board's rule. In particular,
we urge Congress to oppose efforts to nullify the rule under
the Congressional Review Act (``CRA''). Here, a successful
CRA disapproval resolution would be particularly harmful: it
would revert the NLRB's joint employer standard to the Trump
Board's 2020 rule, which stymies workers at the bargaining
table. And further, as explained above, at least one federal
appeals court has strongly suggested that provisions of the
2020 rule are inconsistent with the NLRA, so litigation would
likely invalidate that rule as well. This would create
confusion for the workers, unions, and employers regulated by
the NLRB. Not only could the two standards be nullified,
leaving the Board's joint employer analysis in limbo, but the
NLRB's ability to address that limbo would be unclear due to
CRA limitations.
The CRA provides that once a disapproval resolution is
passed, the underlying agency cannot issue a subsequent rule
in ``substantially the same form'' as the disapproved rule
unless it is specifically authorized by a subsequent law.
Thus, if the Board's new rule is nullified under the CRA, and
the prior Trump rule is invalidated by federal courts, the
NLRB would be limited in issuing a clarifying rule. To avoid
confusion and ensure stability for workers, unions, and
employers, Congress must steer clear of using the CRA to
address the joint employer standard.
For these reasons, we ask that you support the NLRB's joint
employer rule and oppose any effort to weaken or nullify the
clarified standard.
Mr. SCOTT of Virginia. Mr. Speaker, I include in the Record a letter
from the United Steelworkers, in support of the President's veto.
United Steelworkers
Pittsburgh, PA, November 14, 2023.
Re: United Steelworkers urges a NO vote on H.J. Res. 98,
which would invalidate the National Labor Relations
Board's new Standard for Determining Joint Employer
Status.
U.S. House of Representatives, Washington, DC.
Dear Representative: On behalf of the 850,000 active
members of the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union (USW), I write to oppose a misguided and
short-sighted Congressional Review Act (CRA) resolution--H.J.
Res 98. If this resolution passes, American workers will
increasingly face a fractured workplace and lose access to
federally protected collective bargaining rights.
Updating the NLRB joint employer standard is necessary as
employers are increasingly using ``fissured'' workplace
models to keep the parent company from having to bargain with
workers employed by the smaller contracted companies. The
continued contracting out and increased usage of temporary
workers leads to terrible outcomes for the most vulnerable,
precisely because these workers lack the ability to
meaningfully organize and collectively bargain with their
appropriate employer(s).
For example, a 2014 National Employment Law Project report
found that workers at subcontracted firms receive wages from
7-40 percent lower than their non-contracted out peers. That
same study also showed that workers in subcontracted firms
suffer higher rates of wage theft and unpaid overtime.
Analysis from ProPublica has also shown that temp workers are
at an increased risk of workplace injury. Lastly, and perhaps
most chillingly, child workers have been found in meatpacking
plants, while auto-supply chains in the South have had
children as young as 14 years old working for subcontracted
firms--sometimes with deadly consequences. If this resolution
passes, Congress will have made it easier for corporations to
shirk responsibility of their employment oversight, and make
it harder for the American labor movement to stop labor
abuses such as wage theft, unpaid overtime, workplace
injuries, and child labor.
The NLRB had to act as the result of a partisan rulemaking
process during the Trump administration. Prior to 2020, the
NLRB's assessment of a joint employer standard had been
guided by common law for over 50 years. The NLRB, as a quasi-
judicial body, would use case decisions to substantiate its
joint employer standard.
The Trump administration's NLRB dramatically broke with
precedent and created a regulatory rulemaking process to
establish a new joint employer standard. Through this final
rule, the previous NLRB added non-statutory and non-common
law requirements to the NLRB joint employer assessment--
notably, the requirement that an employer must ``possess and
exercise . . . substantial direct and immediate control''
over a worker's ``essential terms and conditions of
employment'' to be considered joint employers.
The problem with this Trump era rule is that it
significantly constrained the NLRB's
[[Page H2895]]
ability to exercise jurisdiction over cases, and limited the
scope of the joint employer standard on when the NLRB can
weigh in. With such a weak standard, employers were able to
simultaneously influence a worker's wages, hours, and working
conditions--all while being inoculated from having to bargain
over those issues with their workers.
By returning to common-law principles in this new standard,
the NLRB provides ``a practical approach to ensuring that the
entities effectively exercising control over workers'
critical terms of employment respect their bargaining
obligations under the NLRA''.
Unfortunately, Representative James John (R-MI-10), along
with 29 other Republicans, introduced a Congressional Review
Act resolution to repeal the NLRB's return to past precedent.
USW strongly opposes the use of a CRA to undermine the NLRB.
If a CRA were to be successfully used, it would prevent the
federal agency from ever issuing a substantially similar
rule, freezing in perpetuity a process that was designed to
evolve with employment practices.
USW opposes H.J. Res 98 in the strongest terms and will
educate union membership on any floor vote outcome. The
NLRB's released joint employer standard returns the country
to prior precedent, and strengthens the legal right of
millions of workers across this country to collectively
bargain with their appropriate employer(s). Again, I urge you
to support this new standard and oppose H.J. Res. 98.
Sincerely,
David McCall,
International President.
Mr. SCOTT of Virginia. Mr. Speaker, lastly, I include in the Record a
letter from dozens of labor and civil rights organizations in support
of the veto.
November 20, 2023.
Re: NLRB Joint Employer Rule CRA.
Hon. Charles Schumer,
Hon. Mitch McConnell,
Hon. Bernie Sanders,
Hon. Bill Cassidy,
U.S. Senate, Washington, DC.
Hon. Mike Johnson,
Hon. Hakeem Jeffries,
Hon. Viriginia Foxx,
Hon. Robert ``Bobby'' C. Scott,
House of Representatives, Washington, DC.
Dear Members of Congress: The undersigned organizations
write to share our opposition to the Congressional Review Act
(CRA) challenge to the National Labor Relations Board's 2023
Joint Employer Rule.
Millions of workers in precarious and subcontracted work
depend on the joint-employer doctrine to protect their right
to organize under the NLRA. In labor-intensive and underpaid
industries like retail, hospitality, fast food, janitorial,
construction, and delivery, workers hired through
intermediary subcontractors like staffing agencies and
specialized contract firms are effectively deprived of their
labor rights because the law fails to recognize who their
employers are. They provide work central to the hotels,
retail operators, fast food chains, construction contractors,
delivery companies, and other corporations that rely on their
labor but are unable to hold those employers accountable when
their labor rights are violated. While this harms a broad
range of workers, it has particularly damaging impacts for
women, Black workers, immigrants, people of color, and people
with disabilities who disproportionately hold precarious,
low-paid jobs.
The Board's new rule reaffirms that, under the NLRA, a
worker may be jointly-employed when more than one entity
shares or co-determines the essential terms and conditions of
their work. What matters is not the corporate structure or
what the companies call the work relationship; what matters
is who has the power to control the essential terms of
employment, like pay, discipline, and health & safety on the
job.
Now, large corporations and industry trade groups are
pushing Congress to vote for a CRA resolution to overturn the
rule. Despite the claims made by these self-interested
groups, the joint employer rule is a simple and necessary
course correction that:
Rescinds the misguided 2020 rule, which improperly narrowed
the NLRA's coverage and unmoored the legal standard from the
common law, by requiring workers to show that a business had
``substantial direct and immediate control'' over the
essential terms of employment;
Grounds the legal analysis in the common law, building on
the Obama-era Browning-Ferris decision that the 2020 Trump
rule overrode;
Affirms that companies are liable for committing unfair
labor practices (such as terminating workers for exercising
their right to organize) and required to bargain with their
workers as joint employers, where they control the essential
terms and conditions of employment;
Accounts for forms of control that are ``indirect'' and
``reserved,'' as well as direct and actually exercised, in
determining whether or not there is an employment
relationship; and
Recognizes that the ``essential terms and conditions of
employment'' include workplace health and safety, and
direction as to how to complete the work, as well as control
over pay and discipline.
This rule is a major step toward safeguarding the labor
rights of millions of workers in subcontracted employment,
ensuring that corporations cannot skirt the law simply by
outsourcing responsibility for their workers. Should a CRA to
overturn this rule be brought to the floor, we strongly urge
all Members of Congress to vote No.
Sincerely,
A Better Balance; AFL-CIO; American Federation of State,
County, and Municipal Employees (AFSCME); APALA; Asian
American Pacific Islander Civic Engagement Collaborative of
New Virginia Majority; Bruckner Burch PLLC; Care in Action;
Caring Across Generations; Center for Economic and Policy
Research; Center for Law and Social Policy; Cincinnati
Interfaith Workers Center; Clearinghouse on Women's Issues;
Communications Workers of America (CWA); Community Legal
Services, Philadelphia; Congregation of Our Lady of Charity
of the Good Shepherd, U.S. Provinces.
CRLA Foundation; Demand Progress; Demos; Economic Policy
Institute; Endangered Species Coalition; Equal Rights
Advocates; Feminist Majority Foundation; Impact Fund;
International Brotherhood of Teamsters; Japanese American
Citizens League (JACL); Jobs to Move America; Jobs With
Justice; Justice & Accountability Center of Louisiana;
Justice at Work; Justice in Motion.
Kentucky Equal Justice Center; KIWA; Lawyers' Committee for
Civil Rights Under Law; Legal Aid at Work; Long Beach
Alliance for Clean Energy; National Advocacy Center of the
Good Shepherd; National Center for Law and Economic Justice;
National Council for Occupational Safety and Health; National
Domestic Workers Alliance; National Education Association;
National Employment Lawyers Association; National Employment
Law Project (NELP); National Institute for Workers' Rights;
National Organization for Women; National Partnership for
Women & Families.
National Resource Center on Domestic Violence; National
Women's Law Center; New Jersey Association on Correction;
North Carolina Justice Center; Northwest Workers' Justice
Project; Public Justice Center; Restaurant Opportunities
Centers United; Santa Clara County Wage Theft Coalition
Service Employees International Union; Shriver Center on
Poverty Law; TechEquity Collaborative; The Leadership
Conference on Civil and Human Rights; The Legal Aid Society;
The Women's Employment Rights Clinic (WERC) at Golden Gate
University (GGU); Transport Workers Union of America.
UAW; United Brotherhood of Carpenters and Joiners of
America; United Food and Commercial Workers International
Union (UFCW); Women Employed; Worker Justice Center of New
York; Worker Power Coalition; Workers Defense Action Fund;
Workplace Fairness; Workplace Justice Lab at Rutgers
University; Workplace Justice Project at Loyola Law Clinic;
Worksafe; Young Invincibles.
Mr. SCOTT of Virginia. Mr. Speaker, I just want to reiterate that the
credit rating that was threatened was the result of the Republicans
threatening a default on our debt. That wasn't anything the Democrats
had done.
Again, I just reiterate that under Biden over 15 million jobs were
created. Under Trump over 6 million were lost. We have had the longest
period of time of unemployment, under 4 percent, since the 1960s. I
think that is a fairly easy record to defend.
{time} 1445
Mr. Speaker, in closing, there is no reason to override the
President's veto, and the votes aren't going to be there.
Unfortunately, this is how the Republicans have operated during the
118th Congress. This is going to be the least-productive Congress in
history.
In contrast, under Democratic leadership, last Congress, we delivered
on significant results. We created millions of jobs, reduced
unemployment to record lows, and, under this administration, kept it
under record lows. We have saved more than a million people's pensions
under the multi-employer pension fund, and we helped tens of thousands
of businesses because they were legally obligated to pay into those
failing funds until the businesses went broke.
We delivered historic funding for education. We improved child
nutrition. We brought the number of uninsured Americans down to the
lowest level ever. I think we can take credit for all of that.
By prioritizing and wasting time on efforts like this, the Republican
majority is failing to live up to the same standard that Democrats have
lived up to.
Mr. Speaker, I commend the President for vetoing H.J. Res. 98 and
protecting American workers. I urge my colleagues to vote ``no'' on
this override effort and yield back the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself the balance of my
time to close.
Mr. Speaker, my friend from Virginia said it himself. The unions, the
Teamsters and the steelworkers, are for this. That is reason enough to
oppose this.
[[Page H2896]]
We talked about the credit being downgraded. It is unprecedented in
the country, twice to have our credit downgraded during this
President's time in office.
The previous President had record job growth and a roaring economy
until the pandemic hit. Under this President, of course, some of the
jobs that were lost in the pandemic have been recovered, but not all of
them.
Again, we have a record-low labor participation rate, meaning the
percentage of those able-bodied, working-age Americans who are working
is at an all-time low. We don't count those individuals who aren't
looking for work in the unemployment numbers. They don't count. You
have an artificially low so-called unemployment rate because there are
record numbers of Americans on Federal assistance, as we have stripped
away all the work requirements for cash welfare, for food stamps, and
for housing assistance.
While we on this side measure success by how many people we get off
of government assistance, the other side measures success by how many
people are on government assistance programs as my colleagues on the
other side of the aisle continue to try to grow the amount of people
who are paid not to work, which further causes economic harm.
We cannot just cut our spending on our way to prosperity. Again, in
this country, we have to grow our way by going back to pro-growth
policies.
Mr. Speaker, in testimony before our committee on this issue, the
president of the International Franchise Association said: The rule
would make franchisees merely employers of and/or co-employers with
their franchisor. This will significantly diminish the value of the
business that they have spent their entire careers building.
We know his statement is true because we have seen this policy play
out before. Years ago, when President Obama's NLRB advanced a similar
rule, the International Franchise Association conducted a study on its
impact, and research showed that the indirect control standard cost the
industry, as my friend from Michigan said, as much as $33 billion
annually, killed almost 400,000 jobs, and, once again, increased
lawsuits against franchise businesses by 93 percent.
The franchise model represents an opportunity to pursue the American
Dream. Congress must stand up for the 9 million franchise workers
across the country and override President Biden's veto.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered.
There was no objection.
The SPEAKER pro tempore. The question is, Will the House, on
reconsideration, pass the joint resolution, the objections of the
President to the contrary notwithstanding?
Under the Constitution, the vote must be by the yeas and nays.
Pursuant to clause 8 of rule XX, further proceedings on this question
will be postponed.
____________________