On July 22, CDW filed an amicus brief with several other employer organizations in Alphabet Workers Union v NLRB, a case before the US Court of Appeals for the DC Circuit in which the NLRB is attempting to  expand the joint employer standard beyond its statutory authority.

The following can be attributed to CDW Chair Kristen Swearingen:

“The NLRB is once again attempting to expand the joint employer standard beyond what is tolerated by the law. The agency is trying to blur the lines between routine contracting relationships and employment relationships in an attempt to give unions access to new members, despite the fact that this interpretation violates the National Labor Relations Act. CDW hopes the DC Circuit recognizes that the Board’s decision in this case was contrary to the law and cannot be allowed to stand.”

On July 19, the NLRB withdrew its appeal of the U.S. District Court of the Eastern District of Texas’s decision nullifying the Board’s joint employer final rule.

The following can be attributed to CDW spokesperson Ed Egee:

“CDW applauds the decision by the NLRB to withdraw its defense of this unlawful rule. They saw the writing on the wall. The rule could not withstand legal scrutiny.

“If the rule had gone into effect, it would have had devastating consequences for our economy and decimated business models that have fueled the American dream. Congress and the courts already recognized the rule’s inherent flaws, and CDW is glad the Board has finally acknowledged them as well.”

On July 9, CDW sent a letter to the House of Representatives urging their support for the FY25 Labor, Health and Human Services, Education, and Related Agencies appropriations bill, which includes two critical policy riders that would prohibit the NLRB from using appropriated funds to implement its joint employer final rule and electronic voting in union representation elections. CDW issued a white paper in 2022 highlighting the dangers of electronic and online voting.

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

“The NLRB’s joint employer rule will have devastating consequences economy-wide, and it will decimate the franchise business model, which has allowed millions to achieve the American dream of owning their own business. Electronic voting would expose workers to intimidation and harassment, provide no security or credibility to the election process, and be extremely costly for the agency.

“The Board chose to pursue bad policy, but Congress is capable of righting the ship. These policy riders are vital to safeguarding the economy and workers’ right to free and fair representation elections. CDW urges the House to pass the Labor appropriations bill with these provisions in tact.”

On May 7, 2024, the NLRB appealed the decision by the US District Court for the Eastern District of Texas nullifying the Board’s joint employer final rule to the 5th Circuit.

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

“CDW is unsurprised but disappointed that the Board is not recognizing the writing on the wall. This rulemaking is unlawful, arbitrary, and capricious. It constituted a massive expansion of the joint employer standard that would violate the NLRA and the common law, and it would create immense confusion throughout the economy.

“That is why Congress on a bipartisan basis opposed the rule and sent a resolution to President Biden’s desk to invalidate the rule and prevent the Board from ever issuing a substantially similar rule in the future. That’s also why the District Court nullified the rule in March.

“The Board should stop trying to defend this unlawful rule.”

On May 3, President Biden vetoed HJRes 98, a Congressional Review Act resolution to nullify the NLRB’s joint employer final rule, despite the House and Senate passing the resolution on a bipartisan basis earlier this year.

The following can be attributed to CDW Chair Kristen Swearingen:

“The CRA would have nullified a rulemaking that massively expands the joint employer standard and violates both the NLRA and common law. The rule will create widespread confusion throughout the economy and jeopardize small and franchise work arrangements, which will have a disproportionate impact on many minority-owned businesses. Congress was wise to pass the CRA before the rule could take effect.

“Unfortunately, the Administration does not have the same foresight. Under the rule, unions will be placed in the middle of routine business agreements, labor relations will be destabilized, and every contractual relationship in the economy will be put at risk.

“In vetoing the CRA, the Administration has turned its back on hard-working Americans and business owners instead, playing into the NLRB’s egregious and unprecedented actions.”

CDW released statements on passage of the CRA, the court ruling nullifying the final rule, and the Board’s issuance of the final rule.

On April 10, the Senate passed HJRes 98, a Congressional Review Act resolution to nullify the NLRB’s joint employer final rule. The resolution already passed the House, meaning the bill is headed to President Biden’s desk for signature.

The following can be attributed to CDW Chair Kristen Swearingen:

“The NLRB’s final rule was a massive expansion of the joint employer standard that would have violated the NLRA and common law. It would have created widespread confusion throughout the economy and jeopardized millions of small businesses. That’s why both federal courts and Congress have moved to nullify it before it could take effect.

“CDW applauds the Senate for taking this step to protect the economy and specifically the small businesses that would have been devastated by this rulemaking. We now urge President Biden to sign this bill into law. Doing so will provide certainty to American businesses, stabilize labor relations, and rein in the Board’s egregious actions.”

On March 8, the District Court for the Eastern District of Texas invalidated the NLRB’s joint employer final rule, finding it too broad and in violation of the NLRA. As Judge Barker stated, the rule “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly … essential terms and conditions of employment.”

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

“CDW applauds the District Court for recognizing what this rulemaking was – a massive expansion of the joint employer standard that would have violated both the NLRA and the common law and would have created widespread confusion throughout the economy.

“With this rule, the Board was attempting to place unions in the middle of routine business to business agreements, and the result would have been devastating for small businesses nationwide. If implemented, the rule would have destabilized labor relations and put at risk nearly every contractual relationship across the economy.

“Thankfully, Judge Barker saw through the Board’s efforts. His decision has protected American workers, businesses, and the economy from the chaos this rule would have created.”

Washington D.C. – On December 12, CDW sent a letter to the House Education and the Workforce Committee in support of the Employee Rights Act (ERA) (H.R. 2700), Modern Worker Empowerment Act (H.R. 5513), and Save Local Business Act (H.R. 2826). The bills would protect workers, entrepreneurs, and small businesses from the biases and misinformed actions of the National Labor Relations Board (NLRB or Board). 

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

“CDW thanks the Subcommittee on Health, Employment, Labor, and Pensions for holding a hearing to examine bills that prioritize workers’ freedom of choice at the same time as the NLRB threatens to strip it away. The Board’s approach is damaging to workers and small businesses and CDW urges the House of Representatives to pass these bills to reign in the NLRB.”

On November 9, the Coalition for a Democratic Workplace (CDW), along with the U.S. Chamber of Commerce, American Hotel and Lodging Association, Associated Builders and Contractors, Associated General Contractors of America, International Franchise Association, Longview Chamber of Commerce, National Retail Federation, National Association of Convenience Stores, Restaurant Law Center, Texas Association of Business, and Texas Restaurant Association, filed a lawsuit against NLRB in the U.S. District Court for the Eastern District of Texas over the final joint employer rule.

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

“The NLRB’s joint employer rule is an unlawful attempt to place unions in the middle of routine business to business, franchise and licensing agreements. The rule makes it far more complicated for larger companies to contract, franchise or license with small businesses. The Board’s rule will undermine entrepreneurial and economic opportunities that generate thousands of jobs.”

On October 26, the NLRB released its final rule on determining joint employer status under the NLRA, which would radically expand the joint employer standard under the NLRA. By explicitly stating that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) OR exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer, the final rule expands upon the damaging policy adopted in the Obama-era Browning-Ferris Industries (BFI) decision.

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

“Today, the NLRB finalized its latest policy designed to dramatically destabilize labor-management relations at the behest of labor unions and at the expense of workers, entrepreneurs, and businesses. The final joint employer rule represents a sweeping expansion to the standard used for determining when two or more employers are jointly responsible for a group of employees and flies in the face of federal law, congressional intent, and court precedent.

“Today’s final rule effectively holds that either indirect or reserved control may stand alone as basis for finding a joint employer relationship, and that the mere existence of either is a definitive indicator – and not merely probative – of joint employer status, making the policy more drastic in scope than the damaging Obama era-standard adopted in BFI. In his dissent, Member Kaplan rightly states that the final rule ‘is potentially even more catastrophic to the statutory goal of facilitating effective collective bargaining, as well as more potentially harmful to our economy, than the Board’s previous standard in BFI.’

“The Board has adopted a policy that will create widespread confusion for business operations and threaten nearly every contractual relationship nationwide by disincentivizing larger companies from contracting, franchising, or licensing with small and local businesses. In doing so, the final rule undermines the millions of workers that rely on the entrepreneurial and economic opportunities generated through these business models.

“Simply put, the Board must stop catering to the demands of organized labor and focus its efforts on supporting American workers, business owners, and economic growth by fulfilling the true intent of the NLRA.”