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CDW Statement on DOL’s Proposal to Rescind its Joint Employer Final Rule

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.”

CDW Statement on NLRB’s Joint Employer Final Rule

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.

CDW Statement on DOL’s Joint Employer Final Rule

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.

CDW Submits Comments on DOL’s Joint Employer Proposal

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.

CDW Submits Letter to House Opposing PRO Act

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.”

CDW Submits Reply Comments on NLRB’s Joint-Employer Proposed Rulemaking

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.

CDW Comments on Proposed Changes to NLRB Joint-Employer Standard

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.

CDW op-ed warns of a ‘card-check’ sequel that’s worse than the original

Today, the Washington Examiner published an op-ed from Coalition for a Democratic Workplace chair Kristen Swearingen York titled “Stealing workers’ secret ballots: A ‘card-check’ sequel that’s worse than the original,” which reads:

Summer is the season for bad sequels. This time, it’s a handful of U.S. lawmakers — led by Sens. Bernie Sanders, I-Vt., and Elizabeth Warren, D-Mass., kowtowing to union bosses ahead of the 2020 election by trying to revive the old, audience-panned “card check” bill from last decade, with a host of new villainous additions.

Those unfortunate enough to recall the original 2005 release of the deceptively named “Employee Free Choice Act” can’t forget its main antagonist — “card check” — a provision that would strip workers’ right to vote privately on whether to unionize their workplace. Opinion polls consistently showed that employees, including those in union households, routinely rejected this affront to workplace democracy. EFCA went beyond killing voting rights, however, with a provision that would have given unelected, unqualified, and unaccountable third parties plenary power over private contracts via “binding interest arbitration.”

It didn’t work, fortunately. Despite aggressive union lobbying and Democratic control of the White House and both chambers of Congress, EFCA was unpopular and had to be abandoned.

Fast forward to the present and Sanders, Warren, and likely 2020 presidential candidates Sens. Cory Booker, D-N.J., and Kirsten Gillibrand, D-N.Y., have introduced the cynically mislabeled “Workplace Democracy Act.” This is just more than just a devious effort to revive card check and binding interest arbitration. It also includes provisions to strike right-to-work legal protections for employees in 28 states, curb opportunities for people to work independently through gig economy platforms or contractor roles, and codify the National Labor Relations Board’s controversial joint employment standard that continues to threaten our nation’s small and local businesses.

If these points aren’t concerning enough, the bill would also interfere with attorney-client confidentiality and make it harder for businesses, and particularly small businesses, to secure legal advice on complex labor law matters.

Finally, it would strip away “secondary boycott” protections, which prevent unions using their exemptions from antitrust laws and immunity from some state laws from targeting business for anti-competitive reasons and purposes other than organizing.

While this all may just seem like a “Fantasia” for union lobbyists, the threat is real. Organized labor almost convinced Congress to pass EFCA in 2010. And if we learned anything from the eight years of anti-business decisions by the Obama-era National Labor Relations Board, bad labor policy does nothing to promote robust job growth nor to increase wages.

It is conventional wisdom that a Democratic presidential candidate cannot emerge as the party’s nominee without extensive support from labor unions. And union officials have made signing onto the Workplace Democracy Act the ante to be considered for labor’s war chest that still holds hundreds of millions of dollars.

Nonetheless, supporters have remained fairly quiet about the bill. It’s not surprising, considering the reception the public gave it last time around.

The media outreach is part of a six-figure, ongoing campaign by CDW to warn of this “Workplace Democracy Attack.”

National Coalition Warns Of Sanders and Warren’s “Workplace Democracy Attack”

FOR RELEASE: June 20, 2018

National Coalition Warns Of Sanders and Warren’s “Workplace Democracy Attack”
Coalition for a Democratic Workplace Calls Out Card Check Sequel

Washington, D.C. — Today, the Coalition for a Democratic Workplace (CDW) launched a multi-prong educational campaign to push back against the so-called “Workplace Democracy Act”—an unwise, unfair, anti-democratic bill that revives the failed “card check” scheme to eliminate secret ballot elections.

The initial six figure launch includes a new website and a full-page ad in USA Today warning of the “Cracked Vision for 2020” co-sponsored by Sens. Bernie Sanders (D-VT), Elizabeth Warren (D-MA), Cory Booker (D-NJ), and Kirsten Gillibrand (D-NY), all of whom would need union support if they seek the 2020 Democratic nomination. The ad warns that the card check sequel “is worse than the first.”

Areas of distribution will include Washington, D.C., Burlington, Vermont, and Boston, Massachusetts to ensure that the staffs and electorates for Sen. Bernie Sanders and Elizabeth Warren are alerted to this direct attack on workplace democracy.

CDW chair Kristen Swearingen York said, “In anticipation of the 2020 elections, unions’ Washington lobbyists are up to their old tricks, trying to buy influence and pushing changes that would allow them to steamroll over the rights of workers, small and local businesses, entrepreneurs and the gig economy all in the name of making it easier to unionize.”

She continued, “It’s was hard to fathom legislation worse than the card check bill that went down in flames less than a decade ago, until we saw this rotten sequel. We are disappointed that four senators and possible presidential contenders are so out of touch with America that they would support a bill that obviously inflicts substantial harm on workers, small businesses, entrepreneurs, and job creators. Our goal is to ensure there is enough visibility on this issue that moderate, sensible elected leaders across the country will oppose this Workplace Democracy Attack.”

The Coalition today also sent a letter to legislators co-signed by more than 125 national and local organizations opposing the bill. The letter can be found here.

The campaign also launched WorkplaceDemocracyAttack.com, where more information can be found on the details of the cynically misnamed “Workplace Democracy Act.”

The Coalition for a Democratic Workplace represents 500 national and local organizations, associations, non-profits, and employers. It worked extensively to defeat card check legislation from 2005 to 2010 and has successfully litigated against anti-democratic, anti-employer, and anti-employee legislation and regulation.

CDW Seeks Rulemaking to Remedy BFI

June 13, 2018 // Washington, D.C. // Today, the Coalition for a Democratic Workplace and 16 leading associations filed a petition with the National Labor Relations Board seeking a rulemaking to remedy the confusion caused by a previous Board’s radical changes to the “joint employer” standard.

The controversial 2015 NLRB Browning Ferris Industries, or BFI decision, expanded and muddled the standard for determining when two separate companies are “joint employers” under the National Labor Relations Act. Joint employers are jointly responsible for labor violations committed by the other and bargaining with respect to any jointly employed workers.

The BFI decision overturned decades of established labor law and undermined the relationships between brand companies and local franchise business owners; contractors and subcontractors; and businesses and their suppliers and vendors. In short, BFI has cast a cloud of uncertainty over business models that have created millions of jobs and allowed hundreds of thousands of individuals to achieve the American Dream of owning their own small business.

The BFI standard also has hampered businesses’ efforts to provide guidance to and impose quality and conduct standards on franchisees, contractors and vendors to the detriment of workers and consumers.

The Petition notes that:

The BFI decision turns a blind eye to the realities of American workplaces and threatens to undermine innovative new business models and the very business relationships that are the engine of our nation’s economy.  BFI’s “reserved control” and “indirect control” standards are so vague and broad that it is often impossible for businesses to determine which relationships will trigger joint employment and which will not.  The scant guidance from the Board on how to apply this unprecedented and amorphous standard has left the regulated community in the dark as to how to structure business to business relationships in a manner that predicts liability or other joint employer obligations.

While the uncertainty created by the BFI standard negatively impacts companies of all sizes across many industries, it is particularly damaging for small and local businesses. The standard encourages larger companies to limit the number of entities with whom they contract, which stifles opportunities for small businesses and startups.

CDW’s petition, if answered affirmatively by the Board, would clarify the operating landscape and protect countless businesses.