Three Republican Congressmen – Senators Lamar Alexander (R-Tenn.) and Ron Johnson (R-Wis.), and Representative John Kline (R-Minn.) — have requested National Labor Relations Board General Counsel Richard Griffin to explain joint-employer comments he made at an October 24, 2014 labor conference urging the NLRB to adopt a more liberal joint-employer standard. Griffin has issued several unfair labor practice complaints against a national food chain, stating, “in that area we have a problem, legally, for our theory to hold franchisors as joint-employers.”

In a letter, the legislators complained to Griffin that he “appear[s] to be pursuing joint-employer cases knowing your legal theory is problematic.”  They note that two months after he made his comments, the General Counsel issued several complaints against a national franchisor, claiming it is a joint-employer.

They also asked Griffin to answer a number of questions and to produce several documents:

1. Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint-employer?

2. If not, please explain your comments made at the October 24, 2014, labor conference.

3. Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint-employer standard from November 4, 2013, to present.

4. Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint-employer standard from November 4, 2013, to present.

The authors set a deadline of March 19, 2015, to provide the answers to those questions.

As we have previously written, the Board has before it the case of Browning Ferris Industries, No. 32-RC-109684, in which it solicited briefs from non-parties. Many expect the Board to change its analysis for determining whether two entities are joint-employers, and therefore, are liable for each other’s unlawful conduct under the National Labor Relations Act.

The General Counsel is urging the Board to abandon the current “direct control” joint-employer standard and replace it with a “totality of the circumstances” test. Direct control requires that a putative joint-employer have control over terms and conditions of employment of the subject employees. This includes hiring and firing, setting work hours, determining compensation and benefits, and exercising day-to-day supervision. Instead, the General Counsel has urged that the Board consider an easier standard to meet – one based on whether an alleged joint-employer exercises either direct or indirect control over the subject employees who work for another employer, and to consider even whether the alleged joint-employer has “unexercised potential to control working conditions” of those employees.

We will keep you apprised of additional developments in this important area.