For 30 years, the National Labor Relations Board’s (NLRB) joint-employer standard held that the definition of an employer was someone with actual or direct control over employees. In 2015, the NLRB dramatically expanded that definition to include indirectand potential control of employees, upending three decades of labor law and creating confusion for small businesses like restaurants.
Rep. Bradley Byrne, R-Ala. (back row, center), met with National Restaurant Association members in his district to talk about the joint-employer standard and what it could mean for their businesses.
The expanded definition of the joint-employer standard could have serious negative consequences for the restaurant industry:
- The new joint-employer standard makes restaurateurs and other small business owners potentially liable for workers they do not directly employ.
- It makes franchisors responsible for the employment and workforce decisions made by franchisees, robbing the latter of their independence.
- It is rapidly expanding to include other contractual business relationships, including third-party vendors, suppliers, staffing firms, or subcontractors.
The National Restaurant Association is working with Congress to pass legislation protecting the way small businesses operate independently of their contractors and franchisees.
In the House, the lead champion on this issue is Chairman Bradley Byrne (R-Ala.), who leads the Subcommittee on Workforce Protections in the House Committee on Education and the Workforce. The Congressman, a former labor attorney, authored H.R. 3441, the Save Local Business Act. The National Restaurant Association has been a vocal supporter of this legislation since it was introduced, and we are hopeful we will see a markup in committee this fall.
Byrne recently spoke about the joint-employer standard’s impact on our industry and explained how his bill – if passed – would bring relief to restaurants and other small operators around the country. Here are some highlights from his comments:
- Why he authored the legislation: “In 2015, this case from the National Labor Relations Board, called Browning Ferris Industries, took that very clear, very easy-to-understand standard and broadened it out dramatically. We had total uncertainty and unpredictability. We were concerned about this and your industry was concerned about this. We thought it was very important to create a statute that clarifies and defines employment as something where you have direct and immediate control over your employee.”
- Why having a statute is important: “We just can’t have this flipping and flopping back and forth. I think it’s important that we write it into the statute so we don’t have this uncertainty. I do think if we got the case to the Trump labor board, they would give us a good decision, but bringing clarity to an environment where we now have a lack of clarity is important for the employer and employee.”
- What restaurateurs can do to help pass the legislation: “We need to be working with every member of the House and the Senate. Every member has restaurants in his or her district affected or potentially affected by this joint-employer definition. If we can get enough people pushing their congressmen and senators to get this thing through and to the President, I know he will sign it.”
Byrne said the bill, introduced several weeks ago, now has 68 sponsors and bipartisan support. His Subcommittee on Workforce Protections held a Sept. 13 joint hearing on the bill with the Subcommittee on Health, Employment, Labor and Pensions.
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