Washington, DC – On December 7, the Coalition for a Democratic Workplace filed comments in response to the NLRB’s notice of proposed rulemaking altering the joint employer standard under the NLRA. As our comments explain, the proposed rule will undermine collective bargaining and destabilize labor relations, is arbitrary and capricious, and diverges from the common law. It ignores federal law, Congressional intent, and court precedent and, in doing so, threatens existing economic relationships and future opportunities for millions of entrepreneurs.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The joint employer standard created by this rule won’t help ensure workers can collectively bargain with the appropriate employers but will actually force businesses to the negotiating table that have no involvement in the workers’ terms and conditions of employment. The standard calls into question routine contractual terms, like quality control standards, workplace safety requirements, or hours of operation, and decimates businesses’ corporate social responsibility initiatives to the detriment of their workers, their consumers, and their communities.

“This radical proposal will destabilize labor relations and potentially destroy business models that have furthered the nation’s economic progress, created entrepreneurial opportunities for Americans nationwide, and provided millions of jobs to the nation’s workforce.

“The Board is once again pursuing extreme policies to further a radical agenda rather than trying to fulfill their statutory obligations to act as a neutral arbiter of the law and stabilize labor relations. This is simply bad policy that will achieve bad results. The Board should abandon this rulemaking in its entirety.”

 

Washington, DC – On September 12, CDW sent a letter to the House Education and Labor Committee expressing serious concerns with the Protecting the Right to Organize (PRO) Act and recent activity and policies pursued by the National Labor Relations Board (NLRB) and its General Counsel, Jennifer Abruzzo.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“Economic analyses have proven that the PRO Act would have devastating consequences for the economy. It would cause economic upheaval at a time when our economy is still struggling with recovering from the COVID-19 pandemic. Inflation is rising, fears of a recession are top of mind, supply chains continue to lag behind demand, and workforce shortages are limiting economic growth. Particularly concerning at this moment in time is the PRO Act’s provision removing the 70-year ban on secondary strikes. As seen by the recently threatened rail strike, this provision alone could shut down the country’s supply chain. Surveys have also shown that the PRO Act is not supported by the public. Congress should abandon the PRO Act and work towards helping the economy get back on track.

“At the same time as Congress pursues this misguided legislation, the NLRB and General Counsel Abruzzo are attempting to rewrite labor law to force unions on workers whether they want one or not. They are trying to eliminate secret ballots in union representation elections and wipe out employers’ First Amendment rights during union organizing campaigns. They are putting employers in an impossible position by forcing them to tolerate discriminatory behavior in the workplace despite the clear violation of federal anti-discrimination laws that such tolerance would require. The Board is pursuing a new joint-employer standard that would destroy small and local businesses. This NLRB and General Counsel Abruzzo are pursuing radical policies without any consideration for the damaging effects they will cause for the regulated community.

“And now, there are allegations that NLRB staff are colluding with labor unions in representation elections and unfair labor practices cases against specific employers. This is simply beyond the pale. The NLRB is supposed to be a neutral arbiter of the law, and instead, staffers are tilting the balance in favor of their preferred side.

“Congress should demand the NLRB and General Counsel Abruzzo stop rewriting labor law to impose their own beliefs on the nation’s economy. The economy simply cannot right itself while simultaneously struggling to keep up with the never-ending radicalization of labor policy.”

Washington, D.C. – On September 6, the Coalition for a Democratic Workplace issued the following statement in response to the National Labor Relations Board’s newly released proposed rulemaking that would radically expand the joint employer standard under the NLRA, creating massive confusion for business operations and labor relations nationwide, inviting unnecessary and costly litigation, and imposing unwarranted liability.

The following can be attributed to CDW Chair Kristen Swearingen:

“Today, the NLRB launched its effort to radically alter labor-management relations, upending years of precedent and jeopardizing the stability of vital business relationships and the American economy overall. The Biden NLRB is threatening to put at risk nearly every contractual relationship nationwide by dramatically expanding the standard used to determine when two or more employers are jointly responsible for a group of employees.

“The NLRB’s proposed rulemaking is more damaging than we anticipated. The proposal goes beyond the controversial Obama-era BFI Board decision by requiring a joint employment determination based on ambiguous concepts of indirect and reserved control. As NLRB Members Kaplan and Ring explained clearly in their dissent, the proposed rule ‘would not merely return the Board to the BFI standard but would implement a standard considerably more extreme than BFI.’

“Whether by accident or design, the proposal disincentivizes larger companies from contracting, franchising or licensing with small and local businesses by injecting uncertainty and unnecessary liability into business relationships. The end result is fewer opportunities for entrepreneurs wishing to invest in their local economy, fewer local jobs, and fewer options for consumers.

“The Board failed to provide any justification for this proposed radical change, which is less clear and harder to apply than the existing 2020 rule, and ignored the DC Circuit’s clear rebuke for ‘oversh[ooting] the common-law mark’ with its BFI decision.

“Members Kaplan and Ring stated in their dissent, ‘The Act’s purpose of promoting collective bargaining is best served by a joint-employer standard that places at the bargaining table only those entities that control terms and conditions that are most material to collective bargaining.’ CDW could not agree more. It’s time for the Board to stop pursuing radical policies at the behest of labor unions, start abiding by the true intent of the Act, and consider the real-life implications of their actions on American workers, business owners, and the economy.”

 

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About The Coalition for a Democratic Workplace

CDW is a broad-based coalition of hundreds of organizations representing hundreds of thousands of employers and millions of employees in various industries across the country concerned with a long-standing effort by some in the labor movement to make radical changes to the National Labor Relations Act without regard to the severely negative impact they would have on employees, employers, and the economy. CDW was originally formed in 2005 in opposition to the so-called Employee Free Choice Act (EFCA) – a bill similar to the PRO Act – that would have stripped employees of the right to secret ballots in union representation elections and allowed arbitrators to set contract terms regardless of the consequence to workers or businesses.

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Washington, DC – On March 12, the Department of Labor issued a proposal to rescind its Final Rule on the joint employer standard under the Fair Labor Standards Act. CDW strongly disagrees with the Department’s efforts to eliminate this clear, easy-to-understand standard that brought much needed clarity to a complex issue.

CDW Chair Kristen Swearingen stated, “The Final Rule encouraged business-to-business cooperation and corporate social responsibility while ensuring the appropriate entities were held accountable to their employees. DOL’s efforts to undo this helpful standard will only result in more uncertainty for the employer and employee communities and more litigation as well as put potential obstacles in the way of our nation’s supply chains – all at a critical time for our nation’s economic and health recovery from COVID-19. CDW strongly urges the Department to reconsider this decision.”

Washington, DC – On February 25, the NLRB issued its Final Rule on the joint-employer standard under the National Labor Relations Act. The Final Rule reinstates the traditional joint-employer standard while further clarifying the standard by providing valuable definitions for key terms.

CDW applauds the Board for finding a comprehensive solution to this complex issue. This Final Rule ensures employers have the stability and predictability necessary to run their businesses, continue to expand, and create more jobs. This bright line rule provides employers and employees alike with clear understanding of how the joint-employer standard will be implemented and interpreted. It successfully ensures employers are held accountable to their employees while protecting them from wrongful liability.

Washington, DC – On January 12, the Department of Labor issued its Final Rule on joint employer status under the Fair Labor Standards Act. CDW applauds the Department for adopting a rule that provides both stability and clarity to employers on this complex legal issue. By focusing on the essential aspects of the employment relationship, DOL will encourage business-to-business cooperation and ensure the appropriate entities are held accountable to their employees.

Washington, D.C. – On June 25, CDW, along with 44 other employer entities, submitted comments on the Department of Labor’s Notice of Proposed Rulemaking altering the joint employer standard under the Fair Labor Standards Act. CDW commended DOL’s proposed adoption of a clear, common-sense standard while encouraging the Department to consider additional changes that would strengthen the proposal and make the joint employer standard easier to understand and comply with.

Additional information on the joint employer standard can be found on our website.

Washington, D.C. – On Tuesday, June 11, CDW submitted a letter to all members of the House of Representatives signed by 147 organizations from around the country opposing H.R. 2474, the so-called Protecting the Right to Organize (PRO) Act.  As CDW’s Chair Kristen Swearingen explained, “H.R. 2474 attacks the gig economy and franchise business model, both of which have provided new and entrepreneurial opportunities to a diverse group of Americans throughout our country. The bill would also infringe on employees’ rights to privacy and association, destabilize labor management relations, deprive small businesses of access to confidential legal advice, and strip all workers of Right-to-Work protections. H.R. 2474 is in essence a heavy-handed attempt to increase union membership and union revenue streams without regard to American workers, small businesses, entrepreneurs or economy growth. Members of Congress should not cave to special interests and should reject this bill quickly and completely.”

Washington, D.C. – On February 11, CDW submitted its reply comments on the NLRB’s Notice of Proposed Rulemaking regarding the joint-employer standard under the National Labor Relations Act. The reply comments reiterate CDW’s support for the Board’s proposed rule while countering unsupported claims made by opponents of the proposal.

As Chair of CDW Kristen Swearingen explained, “CDW strongly supports the Board’s proposal. Despite what opponents of the rule may claim, both procedure and substance in the proposal are sound. The Board should move forward with the rule and the clarifying definitions CDW suggested in its original comments.”

Additional information on the joint-employer standard and the proposed rulemaking can be found on our website.

Washington, D.C. – On January 28, nearly 90 organizations joined comments filed by the Coalition for a Democratic Workplace (CDW) in response to the National Labor Relations Board’s (NLRB) Notice for Proposed Rulemaking (NPRM) containing proposed changes to the joint-employer standard under the National Labor Relations Act (NLRA).

The NLRB’s proposal adopts the long-accepted, practical requirement that the NLRB will find a joint employment relationship under the NLRA where a business or other entity actually exercises control over the essential terms and conditions of another employer’s employees. In doing so, the Board would restore clarity on this important part of the law. In the August 2015 decision in Browning-Ferris Industries (BFI) – the Board created confusion by expanding the standard without defining key terms or providing guidance as to how to implement the changes to the law. The BFI standard created massive uncertainty throughout the business community and drastically expanded the number of business relationships that could trigger joint-employer status, exposing almost every contractual relationship to unwarranted liability. The US Court of Appeals for the D.C. Circuit recently returned the BFI case to the Board, noting the BFI standard lacked clarity.

Our comments today urge the Board to adopt the Proposed Rule but with the addition of clarifying definitions that will enhance predictability and stability of the rule’s application and outline essential terms and conditions of employment that allow for meaningful collective bargaining.