The Service Employees International Union (SEIU) Friday filed a lawsuit challenging the joint employer rule issued by the National Labor Relations Board during the Trump years. The suit, filed in federal court in Washington, DC, explains that Trump Board’s rule undermines the rights of millions of private-sector workers by relieving large corporations that control their work from the duty to bargain with them, even over life-and-death COVID-19 issues.
The rule is the culmination of a shameful saga under the Republican Board majority, which set out to let these corporations off the hook by any means necessary. First, they used a case pending before the Board to shrink the joint employer responsibilities of corporations. But the agency’s Inspector General determined that one of the Board members who decided the case had a conflict of interest and should not have participated, tainting the decision. The Republican majority was undeterred, however, and issued the rule, which implements a corporate-friendly joint employer standard essentially identical to the one ethics rules prevented them from obtaining in the case.
The rule lets corporations escape liability as joint employers if they hold control over workers’ jobs in a contract without explicitly exercising it. Notably, the rule is “particularly egregious in the context of the global COVID-19 pandemic,” the complaint points out, because it also excludes health and safety conditions from an exclusive list of “essential” conditions over which entities that hold control must bargain. This means that even a corporation that explicitly dictates health and safety conditions - including COVID rules, protocols, and PPE - may escape the duty bargain over those conditions.
“The pandemic has demonstrated just how essential our nation's essential workers are when it comes to keeping us fed, housed and healthy,” says SEIU President Mary Kay Henry. "The Trump Board’s joint employer rule lets companies that control these workers’ health and safety conditions escape the responsibility to bargain. This is both shameful and illegal, and SEIU will fight to have the rule struck down.”
As a result of the rule’s changes, workers’ representatives cannot sit down at the bargaining table with the corporations that have the power to effectively determine their working conditions in the real world. Workers’ “on-paper” employers may refuse to change certain terms and conditions because they are subject to a larger, more powerful company’s control. The Board’s rule lets these larger companies off the hook.
“When I put on a McDonald's uniform, it means I'm working for McDonald's, period,” says Delia Vargas, an Oakland, California, McDonald’s worker. “When we showed up to serve Big Macs and fries amid the pandemic, our franchise owner gave us coffee filters and doggie diapers to wear as masks and McDonald's did nothing to protect us. But we know McDonald’s is our boss, and we’ll keep speaking out and fighting for a voice on the job until they take responsibility for keeping us safe."
At a time when essential workers continue to face the ongoing threat of COVID-19, the Republican majority’s failure to reconsider the exclusion of health and safety matters was unconscionable. SEIU and the AFL-CIO filed a request in April of 2020 pleading with the Board to reconsider the health and safety exclusion in light of the pandemic. The Board took no action on this request.
SEIU’s lawsuit alleges that the rule is arbitrary and capricious and contrary to the National Labor Relations Act’s worker protections. SEIU seeks to have the rule struck down in court so that workers can hold all of the companies that control their jobs accountable.