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Law360 (April 20, 2020, 9:44 PM EDT) -- The AFL-CIO and the Service Employees International Union on Monday urged the chairman of the National Labor Relations Board to delay the agency's impending "joint employer" rule, warning the regulations will leave many workers powerless to demand protection from the COVID-19 pandemic.
The rule, which is set to take effect next Monday, sets the circumstances in which workers for a staffing company or other labor supplier can negotiate job terms with the business that contracts them. Only if the contracting company directly controls certain "essential" job terms can the workers make it come to the bargaining table.
Because that list of essential terms doesn't include safety rules, contract workers may have no say over their workplace protections or lack thereof, the unions said.
"The error of this aspect of the final joint employer rule has recently become tragically evident," AFL-CIO general counsel Craig Becker and SEIU general counsel Nicole Berner told NLRB Chairman John Ring. They asked that the rule's April 27 effective date be pushed back to July 31.
The Trump administration prioritized revamping the NLRB's joint employment standard after Democratic board members made it easier for workers to bargain with linked employers in a 2015 decision known as Browning-Ferris.
In that case, the board said a business is a joint employer if it has even indirect control over workers' job conditions. The joint employer rule undoes Browning-Ferris and tightens the test, allowing negotiations only when an alleged joint employer has direct control over one of a handful of essential job conditions, including wages, benefits, hours and supervision.
Several unions urged the NLRB to look at other terms while it was crafting the rule, including 1199SEIU Healthcare Workers East, which said safety standards are essential to its members. But the board said its list comprised the terms "most material to collective bargaining," dismissing the commenters' concerns.
The coronavirus pandemic has "only confirmed the centrality and materiality to employees and employers of safety and health matters," Becker and Berner said Monday. To a temporary worker assigned to a hospital that controls protocols for virus exposure, safety rules are "quite literally, a matter of life and death," they said. It's also vital to temporary and agency workers in the poultry, grocer and other industries where workers continue to fall ill and die.
"The record before the board in the rulemaking proceeding, examined in light of the public health crisis the nation now confronts, calls for reconsideration of the board's determination that safety and health matters are not 'essential' terms and conditions of employment," the GCs said.
Monday's letter comes a few weeks after the board delayed a new rule governing certain union elections "to allow the board's employees and stakeholders to focus on" the virus rather than a new rule. The board should follow "the same pragmatic rationale" and push back the joint employer rule, Becker and Berner said Monday.
Becker said he was cautiously optimistic the board would delay the joint employer rule Monday in a call with Law360. While undoing Browning-Ferris is a key goal of the board's Republican majority, so was shifting the election standard, he said.
"I think maybe the crisis of the moment will cause them to rethink this particular aspect," he told Law360.
An NLRB representative declined comment Monday.
--Editing by John Campbell.
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