Punching In: High Stakes in Joint Employer Rule’s CRA Challenge

Monday morning musings for workplace watchers.

Joint Employer Rule and the CRA|EEOC Harassment Guidance Comments

Robert Iafolla: The National Labor Relations Board will need President Joe Biden’s help should Congress strike down the agency’s new rule that lowers the bar for multiple companies to be deemed joint employers of the same workers.

Lawmakers passing a Congressional Review Act resolution disapproving of the NLRB’s joint employer regulation wouldn’t just kill the rule. It would have the potential to lock in place the more business-friendly Trump-era standard in perpetuity.

But a Biden veto of a CRA resolution—which is very likely—would seemingly nip that scenario in the bud. Large swaths of Democratic lawmakers would have to turn on the NLRB to override a veto.

The CRA is an issue because Sens. Joe Manchin (D-W.Va.) and Bill Cassidy (R-La.) pledged in the wake of the rule’s release to axe the overhaul with a disapproval resolution. Sen. Kyrsten Sinema (I-Ariz.) has expressed support for such a measure.

The possibility of that freezing the joint employer test in its 2020 form stems from the CRA’s prohibition on agencies issuing rules that are “substantially the same” as the nixed regulations.

“That provision is Congress telling the agencies ‘don’t try to wear us down,’” said David Super, an administrative law professor at Georgetown University.

The NLRB doesn’t have a lot of policy options for its legal test to determine when two entities share liability for labor law violations and obligations to bargain with unions, and recent history shows that narrow range.

The Obama-era board expanded the standard to look beyond direct control of employment terms and conditions to consider indirect and unexercised control with its 2015 ruling in Browning-Ferris Industries.

An all-Republican NLRB narrowed the test in 2020 by removing the indirect and unexercised elements. That board did so via notice-and-comment rulemaking, a break from its standard practice of establishing labor law standards in individual case decisions.

The latest iteration essentially returns to the Browning-Ferris standard, though the rule makes clear that indirect or unexercised control alone could be enough to trigger a joint employer finding.

So if Congress passes a CRA resolution and Biden doesn’t veto it, the board would go back to the direct-control test and presumably couldn’t issue a rule accounting for indirect and unexercised control.

But what if the NLRB responded by rescinding the Trump-era rule, thus reviving a Browning-Ferris test that seems substantially the same as the rule quashed by the CRA resolution?

The board would have a strong argument that it could because the CRA applies to regulations, not standards set by case adjudication, said Bridget Dooling, an administrative law professor at Ohio State University.

Congress could be the one that decides because of the law’s prohibition on judicial review. Courts have generally interpreted that provision to mean they can’t hear claims alleging agency failure to comply with the CRA, according to a Congressional Research Service report.

That means Congress—depending on its partisan composition—could strike back at the agency if lawmakers believe the NLRB overstepped its bounds, potentially with funding cuts, budget riders, oversight hearings, and another CRA resolution.

But all of that is academic if Congress doesn’t pass the CRA resolution, or if Biden vetoes it.

Read More:

• New Labor Board Joint Employer Test Replaces Trump-Era Rule
• Labor Board’s Joint Employer Rule Faces Court, Congress Hurdles
• Joint Employment Rules Vary by Agency: Different Tests Explained
• Sinema Pushes Back On Labor Board’s Planned Joint Employer Rule

The Equal Employment Opportunity Commission seal at the headquarters in Washington, D.C., on Feb. 18, 2020.

Photographer: Andrew Harrer/Bloomberg

Riddhi Setty: The US Equal Employment Opportunity Commission has received over 37,000 comments on its draft enforcement guidance covering harassment in the workplace, many of which center around the mention of pronouns.

The EEOC released its long-awaited proposed guidance Sept. 29, which included strong protections for LGBTQ+ workers’ rights, including behaviors from assault to misgendering to preventing workers from using the bathroom or locker room that fits their gender identity.

These proposed measures are already receiving legal pushback, with state attorneys general claiming in a letter to the EEOC last week that the agency is overstepping its statutory authority and violating Title VII of the Civil Rights Act of 1964 with the guidance.

The comment period for the guidance closed Nov. 1, drawing several thousand more comments than the last time the EEOC solicited feedback on draft enforcement guidance on harassment in 2017, which resulted in 120 comments.

Of the more than 37,000 comments, over 14,000 mention the word “pronoun,” with some raising religious concerns or First Amendment concerns.

Over 13,500 comments draw from draft language created by FRC Action, the legislative branch of the pro-life nonprofit organization the Family Research Council, according to a Bloomberg Law analysis.

The draft letter expresses concerns about the guidance’s negative impact on the workplace, saying it would “erroneously expand the definition of ‘harassment’ to the detriment of free speech.”

It also expresses concerns that the EEOC’s proposal endangers female employees by forcing employers to allow individuals to use bathrooms or locker rooms that align with their gender identity, and “violates the conscience of employers who want to preserve sex-segregated spaces for the safety of their employees.”

The contention over the guidance’s protections may result in legal challenges down the line, which the EEOC is already familiar with when it comes to LGBTQ+ worker protections.

Though its 2017 proposed enforcement guidance was unanimously approved by the commission, it was reportedly held up by the Trump administration due to internal disagreements over LGBTQ+ worker protections and never finalized. The agency also issued a technical assistance document on LGBTQ+ workplace discrimination protections, which was ultimately vacated by a federal judge in Texas.

It remains an open question whether the Supreme Court’s recent decision in Bostock v. Clayton County —which said workplace discrimination based on sexual orientation and gender identity is illegal—will be enough to shield the guidance from potential litigation.

—With assistance from Nicole Sadek

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