The Senate this summer should stop a nasty bureaucratic tussle, clarify and simplify rules for small business owners and workers alike, and promote community involvement by locally owned businesses, all by passing one straightforward, single-issue bill.
It’s a big fight about a seemingly small regulatory change, one which again entered federal court on June 14. Local franchise businesses, a particularly fertile field for minority entrepreneurs, are most obviously affected by the battle.
The Save Local Business Act, H.R. 3441, would reinstate the pre-Obama rules pertaining to something known as “joint employer” situations. Sponsored by Bradley Byrne, a conservative Republican U.S. representative from Alabama, it is also endorsed by minority groups such as the Southern Christian Leadership Conference, or SCLC, and welcomed by an analyst at the Progressive Policy Institute. It is a bill ripe for bipartisan accord.
The Obama rule expanded the definition of “employer” so that even if a business owner exercised “control” over an employee that is only “indirect,” the owner could be considered a “joint employer” for purposes of labor law — with all the complicated rules and requirements pertaining to employer-employee relations.
Consider restaurant franchises. Under the Obama standard, both a national burger chain and its local franchise could be on the hook for an employment dispute at a single outlet.
Or if a local business hires a builder for repairs, and the builder (not the local business) somehow violates a worker’s rights, then the local business could still be named in a complaint.
The blurring of lines, and the added liability for franchisers, makes the franchising model far less attractive. By discouraging the very practice of franchising, it retards entrepreneurship and job creation, de-emphasizes local management and community involvement, and hinders one of the most common routes for minorities to become business owners.
Indeed, Census numbers show that 30.8 percent of franchises were minority-owned, compared to just 18.8 percent of nonfranchised businesses. SCLC’s president, Charles Steele, wrote that the Obama standard would provide “fewer opportunities for our brothers and sisters to take control of their destiny and build wealth for their families.”
“We may see reduced business dynamism,” wrote Dane Stangler at the blog of the Progressive Policy Institute, about the effects of the Obama rule. “Faced with the new incentive structure of the expanded joint employer doctrine, franchisors will have a clear preference against smaller franchisees in favor of the larger organizations. This will make it much harder for new entrepreneurs to enter business through franchising, further raising barriers of entry for business creation.”
Unions, though, support the Obama rule because it makes it easier for workers to combine in groups large enough (in the words of James Hoffa, the Teamsters president) “to engage in meaningful collective bargaining.”
The National Labor Relations Board has ping-ponged between interpretations of existing law on this subject. After the Obama-era NLRB issued the expanded joint-employer ruling in 2015, a newly Republican majority on the NLRB overturned it last December. But that decision was vacated when the NLRB’s inspector general advised that one of the Republican appointees should have recused himself because of work on that issue by his former law firm.
The NLRB now is working on a separate, formal rule-making process to reverse the Obama regulation, and last week took the issue (on a different track) to the D.C. Circuit Court of Appeals.
The uncertainty, of course, is unsettling for all sides.
That’s where the Save Local Business Act comes in. It would stop the competing regulatory and judicial re-interpretations of existing law, instead codifying the understanding that had applied for decades before 2015. That prior standard treated two businesses as “joint employers” only if both actually exercised (quoting the National Law Review) “direct and immediate joint control over essential employment terms and conditions of employment (such as hiring, firing, disciplining, or supervising employees) of employees… as opposed to merely reserving the right to exercise control.” Thus, a national franchisor that merely set general terms of employment, but not “how or when to perform it,” was not considered the employer for labor-law purposes.
Restoring the old law would help enterprises such as Popped! Republic, a popular D.C. food-truck business. Its owner, Kristie Arslan, told The Daily Caller last year that she has expanded her business significantly less rapidly because of the joint employer rule.
“We made the conscious decision not to go the franchise route until this issue is resolved,” she said.
Byrne’s bill easily passed the House, 242-181, last November. The Senate Committee on Health, Education, Labor and Pensions, however, has yet to take it up. To resolve the current uncertainty by clearing up Congress’ intent, the Senate should act on this measure, perhaps with a few tweaks to attract bipartisan agreement. Small businesses, and their workers, really need this fix.
Quin Hillyer (@QuinHillyer) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a former associate editorial page editor for the Washington Examiner, and is the author of Mad Jones, Heretic, a satirical literary novel published in the fall of 2017.