SACRAMENTO—California Attorney General Xavier Becerra today joined a multistate comment letter opposing the National Labor Relations Board’s (NLRB) proposal to reverse its decision in BFI Newby Island Recyclery (2015), and dramatically narrow the definition of “joint employer.” The NLRB’s proposal would diminish the ability of millions of workers to gain the benefits and protections of collective bargaining.
“As our economy and labor markets continue to evolve, our laws should keep pace to strengthen protections for workers, not weaken them,” said Attorney General Becerra. “The NLRB’s proposal reverses course and leaves contracted workers without recourse to effectively bargain with companies that have broad control over their working conditions. California has a strong and legitimate interest in enforcing labor laws that protect workers, and we urge the NLRB to do the same.”
Under the NLRB’s 2015 decision in BFI Newby Island Recyclery, a joint employer is defined as any entity having the right to control the nature, operational contours, and premises of a job, even if the person is employed by another entity. The definition recognizes the increasing prevalence of temporary and agency workers who may be hired by a contractor, but are still under the control of a joint employer. This definition allows contracted workers and others to bargain with their direct employers as well as the company that controls their workplace or other conditions of their jobs. On December 28, 2018, the NLRB’s BFI decision was affirmed in relevant part by the U.S. Court of Appeals for the District of Columbia.
On September 14, 2018, the NLRB took the unprecedented step of noticing rulemaking reversing its own joint-employment standard. The proposed rule would significantly narrow the definition of “joint employer,” counting only those employers who share responsibility over essential terms of employment such as hiring, firing, supervising or disciplining employees. In the letter, the Attorneys General argue that this narrower definition is insufficient to offer protections in the modern workplace and would result in millions of workers no longer being protected as joint employees. The loss of this bargaining power is likely to result in lower wages and fewer protections for these workers.
Attorney General Becerra joined the Attorneys General of New York, Pennsylvania, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Virginia, Washington, and the District of Columbia in filing the letter.
A copy of the letter can be found here.