Sign-On Letter Opposing Congressional Review Act Challenge to the National Labor Relations Board’s 2023 Joint Employer Rule

View a PDF of the letter here.

November 20 2023
The Honorable Charles Schumer
The Honorable Mitch McConnell
The Honorable Bernie Sanders
The Honorable Bill Cassidy
United States Senate
Washington, D.C. 20510

The Honorable Mike Johnson
The Honorable Hakeem Jeffries
The Honorable Viriginia Foxx
The Honorable Robert “Bobby” C. Scott
United States House of Representatives
Washington, D.C. 20515

Cc: Members of Congress

Re: NLRB Joint Employer Rule CRA

Dear Members of Congress:

The undersigned organizations write to share our opposition to the Congressional Review Act (CRA) challenge to the National Labor Relations Board’s 2023 Joint Employer Rule.

Millions of workers in precarious and subcontracted work depend on the joint-employer doctrine to protect their right to organize under the NLRA. In labor-intensive and underpaid industries like retail, hospitality, fast food, janitorial, construction, and delivery, workers hired through intermediary subcontractors like staffing agencies and specialized contract firms are effectively deprived of their labor rights because the law fails to recognize who their employers are. They provide work central to the hotels, retail operators, fast food chains, construction contractors, delivery companies, and other corporations that rely on their labor, but are unable to hold those employers accountable when their labor rights are violated. While this harms a broad range of workers, it has particularly damaging impacts for women, Black workers, immigrants, people of color, and people with disabilities who disproportionately hold precarious, low-paid jobs.

The Board’s new rule reaffirms that, under the NLRA, a worker may be jointly-employed when more than one entity shares or co-determines the essential terms and conditions of their work. What matters is not the corporate structure or what the companies call the work relationship; what matters is who has the power to control the essential terms of employment, like pay, discipline, and health & safety on the job.

Now, large corporations and industry trade groups are pushing Congress to vote for a CRA resolution to overturn the rule. Despite the claims made by these self-interested groups, the joint employer rule is a simple and necessary course correction that:

• Rescinds the misguided 2020 rule, which improperly narrowed the NLRA’s coverage and unmoored the legal standard from the common law, by requiring workers to show that a business had “substantial direct and immediate control” over the essential terms of employment;
• Grounds the legal analysis in the common law, building on the Obama-era Browning-Ferris decision that the 2020 Trump rule overrode;
• Affirms that companies are liable for committing unfair labor practices (such as terminating workers for exercising their right to organize) and required to bargain with their workers as joint employers, where they control the essential terms and conditions of employment;
• Accounts for forms of control that are “indirect” and “reserved,” as well as direct and actually exercised, in determining whether or not there is an employment relationship; and
• Recognizes that the “essential terms and conditions of employment” include workplace health and safety, and direction as to how to complete the work, as well as control over pay and discipline.

This rule is a major step toward safeguarding the labor rights of millions of workers in subcontracted employment, ensuring that corporations cannot skirt the law simply by outsourcing responsibility for their workers. Should a CRA to overturn this rule be brought to the floor, we strongly urge all Members of Congress to vote No.

Sincerely,

A Better Balance
AFL-CIO
American Federation of State, County, and Municipal Employees (AFSCME)
APALA
Asian American Pacific Islander Civic Engagement Collaborative of New Virginia Majority
Bruckner Burch PLLC
Care in Action
Caring Across Generations
Center for Economic and Policy Research
Center for Law and Social Policy
Cincinnati Interfaith Workers Center
Clearinghouse on Women’s Issues
Communications Workers of America (CWA)
Community Legal Services, Philadelphia
Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces
CRLA Foundation
Demand Progress
Demos
Economic Policy Institute
Endangered Species Coalition
Equal Rights Advocates
Feminist Majority Foundation
Impact Fund
International Brotherhood of Teamsters
Japanese American Citizens League (JACL)
Jobs to Move America
Jobs With Justice
Justice & Accountability Center of Louisiana
Justice at Work
Justice in Motion
Kentucky Equal Justice Center
KIWA
Lawyers’ Committee for Civil Rights Under Law
Legal Aid at Work
Long Beach Alliance for Clean Energy
National Advocacy Center of the Good Shepherd
National Center for Law and Economic Justice
National Council for Occupational Safety and Health
National Domestic Workers Alliance
National Education Association
National Employment Lawyers Association
National Employment Law Project (NELP)
National Institute for Workers’ Rights
National Organization for Women
National Partnership for Women & Families
National Resource Center on Domestic Violence
National Women’s Law Center
New Jersey Association on Correction
North Carolina Justice Center
Northwest Workers’ Justice Project
Public Justice Center
Restaurant Opportunities Centers United
Santa Clara County Wage Theft Coalition
Service Employees International Union
Shriver Center on Poverty Law
TechEquity Collaborative
The Leadership Conference on Civil and Human Rights
The Legal Aid Society
The Women’s Employment Rights Clinic (WERC) at Golden Gate University (GGU)
Transport Workers Union of America
UAW
United Brotherhood of Carpenters and Joiners of America
United Food and Commercial Workers International Union (UFCW)
Women Employed
Worker Justice Center of New York
Worker Power Coalition
Workers Defense Action Fund
Workplace Fairness
Workplace Justice Lab at Rutgers University
Workplace Justice Project at Loyola Law Clinic
Worksafe
Young Invincibles