Senior living advocates formally have voiced their opposition to a rule for determining “joint employer” status proposed by the National Labor Relations Board.
Wednesday was the deadline to file comments to the proposed rule, announced Sept. 6, with the board subsequently posting the comments online. Anyone wishing to respond to the comments must do so by Dec. 21.
The proposed rule, which would replace one that went into effect in 2020, is of special interest to senior living providers that use temporary or contract workers, as well as to operators that are part of franchises.
The current rule holds that a business is a joint employer under the National Labor Relations Act only when it has “substantial direct and immediate control” over the essential terms and conditions of another company’s employee.
Under the proposed rule, two or more employers would be considered joint employers if they share or co-determine an employee’s “essential terms and conditions of employment,” such as compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules.
Argentum signed on to comments from the Coalition for a Democratic Workplace, which recommended that the NLRB “start over or leave the current standard in place.” As previously reported by McKnight’s Senior Living, Argentum is opposed to the proposed standard.
“The proposed rule purports to be grounded in common law agency principles, but instead represents an ill-defined standard for joint employer liability that sinks to the level of an arbitrary and capricious agency action,” the coalition wrote in its comments.
The coalition also maintains that the proposed rule contains ill-defined terms, conflicts with the common law standard it imposes, and lacks congressional authorization.
“Overall the proposed rule is inconsistent with the board’s stated objective of furthering ‘the [National Labor Relations Act’s] purpose of promoting collective bargaining and stabilizing labor relations,’ ” its filed comments state.
In separate comments to the NLRB, LeadingAge Vice President of Legal Affairs Jonathan Lips called the proposed rule “vague” and a “much-expanded standard” that would create “significant uncertainty and adversely affect” aging services employers.
“The proposed standard is extremely broad, giving rise to the concern that parties to a sweeping range of business relationships could potentially be deemed joint employers, and it is vague to a degree that we believe organizations will be unable to accurately prejudice the circumstances under which the board might find a given arrangement to be one of joint employment,” Lips wrote.
LeadingAge said the proposed rule would “unreasonably impose risks” on employers, including expanded collective bargaining obligations and liability for unfair labor practices by business partners.
Long-term care providers routinely enter into contracts to provide services to residents, including temporary staffing contracts, contracted therapy, food service and maintenance agreements, Lips said, adding that providers also often share service agreements with hospitals or other providers sharing a facility’s campus.
According to LeadingAge, the 2020 rule is “relatively straightforward for businesses to understand, plan for and apply.”
“It allows the contracting entity to make judgments about whether and when to reserve some level of authority with respect to such matters as scheduling, workplace safety and general workplace rules — which is an appropriate course of action in a person-centered and strictly regulated environment such as aging services — with reasonable certainty that its arrangement will not lead to a finding of joint-employer status.”
The proposed rule, however, will create “considerable challenges” for organizations that do not want to assume increased regulatory risk associated with joint-employer liability, according to LeadingAge, which said that those challenges include how to restructure longstanding business models and structuring new ones. The proposed rule also could result in entities turning away from certain business models or third-party relationships, resulting in the loss of specialized skills, economic efficiencies or other benefits, according to the association.
Sixty-seven Republican senators and representatives also oppose the proposed rule, according to a letter they wrote to the NLRB, maintaining that “the rule is inconsistent with the common law, circumvents congressional authority, and will negatively impact the nation’s economy and our constituents.” The letter-writing effort was led by Sens. Mike Braun of Indiana and Richard Burr of North Carolina as well as Rep. Virginia Foxx of North Carolina.
Other lawmakers, union support proposed rule
In contrast, US Sen. Patty Murray (D-WA), chair of the Senate Committee on Health, Education, Labor and Pensions, led 21 of her colleagues in sending a letter supporting the proposed rule, saying it marks a return to the historical standard and protects workers’ rights by restoring employer obligations to bargain with workers for fair ay, better hours, safer working conditions and more.
Additionally, attorneys general from 17 states — California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island and Washington — and Washington, DC, in a letter to the NLRB expressed their support of the proposed rule, which they said is “rooted in the common law” and “reflects contemporary employment relationships.”
The Service Employees International Union, the largest healthcare union in North America, also said that it supports the proposed rule, “because it will carry out the Board’s responsibility to make the Act’s promises real for millions of workers in fissured workplaces.”
In its letter, the group recommended that the NLRB “swiftly finalize” the proposed rule with some suggested changes.
