NLRB’s Joint Employer Rule Could Harm Seniors, Republicans Say

A group of Senate Republicans are arguing that the National Labor Relations Board’s joint employer rule could have a negative impact on older Americans, the latest volley against a regulation set to take effect early next year.

Companies that exert enough control to be deemed a joint employer of another firm’s workers share liability for unfair labor practices and union bargaining obligations. The NLRB’s new rule expands the type of control that can trigger a joint employment finding, going from just direct control to also cover indirect and reserved, unexercised control

This could affect operators of senior living facilities that often contract out work to service providers, Sen. Mike Braun (R-Ind.) and three other Republican senators wrote in a Nov. 17 letter obtained by Bloomberg Law.

“Under the rule, long-term care organizations would face expanded liability for their contracts with other service providers and the accompanying high regulatory costs would introduce considerable uncertainty for the aging community,” the senators said in the letter addressed to NLRB Chair Lauren McFerran. “There is little evidence that the Board has specifically accounted for the threat the rule poses to older Americans.”

The letter adds to opposition to the rule on Capitol Hill and in courts. It follows a lobbying campaign by more than 60 business advocacy groups, as well as the introduction of a Congressional Review Act resolution, to overturn it.

An industry coalition led by the US Chamber of Commerce has also sued to block the rule.

The fierce corporate hostility to the regulation doesn’t appear to match its practical impact, at least when compared to how frequently the issue is litigated.

NLRB regional directors and administrative law judges have applied the current joint employment test in about 1% of their rulings since that standard took effect in 2020. Those officials similarly used the Obama-era joint employer test in roughly 1% of their decisions in the first three years after it was established.