The US House of Representatives last night approved the “Save Local Business Act,” HR 3441, that would roll back a 2015 National Labor Relations Board ruling that significantly expanded the definition of joint employment [1].
In its 2015 decision, the NLRB ruled Browning-Ferris Industries of California was a joint employer of workers employed by staffing firm Leadpoint Business Services at BFI’s Milpitas, Calif., recycling site. The board cited indirect and direct control that BFI possessed over key employment terms and conditions of Leadpoint workers.
Separately, Browning-Ferris has also appealed the NLRB decision to the US Court of Appeals for the District of Columbia.
Fiona Coombe, SIA’s director of legal & regulatory research, said there has been a lack of clarity and consistency in the interpretation of the standard for joint employment since the NLRB ruling.
“This is currently the subject of an appeal, but even if the ruling is overturned, this wouldn’t provide the certainty that this bill is promoting,” Coombe said. “While this legislation will help staffing firms and their clients understand the parameters of the law, most staffing relationships will still amount to joint employment under the test promoted by the bill. Employers using temporary agency workers should assume that they are joint employers, and ensure that vendors are compliant with their employer obligations.”
The Save Local Business Act had been introduced by Congressman Bradley Byrne, R-AL.
“For a few years now, I’ve visited local businesses and heard concerns about how the joint employer scheme creates confusion and uncertainty for workers and job creators,” Byrne said in a statement. “With this vote today, the House has shown we are listening to those concerns and doubling down on our commitment to protecting local businesses and their employees.”
Passed on a 242 to 181 vote, HR 3441 will proceed to the Senate.
IC Safe Harbor Legislation. Separately, the House is considering a bill that would create a safe harbor for independent contractors, assuring they are independent contractors and not employees. And clients would not be classified as employers.
Introduced Oct. 27 [2] by Congressman Tom Rice, R-SC, the bill, No. HR 4165, was referred to the House Committee on Ways and Means Committee. It was a companion bill to similar legislation introduced in the Senate earlier this year.
The bill would create a safe harbor-based on criteria, including:
- “The relationship between the parties (e.g., job-by-job arrangement, the service provider incurs his own business expenses, the service provider is not tied to a single service recipient);”
- “The location of the services or the means by which the services are provided (e.g., the service provider has his own place of business, does not work exclusively at the service provider’s location, provides his own tools and supplies); and”
- “A written contract (e.g., stating the independent-contractor relationship, acknowledging that the service provider is responsible for his own taxes, providing the service recipient’s reporting and withholding obligations).”