October 21, 2015

House Republicans Challenge OSHA ‘Joint Employer’ Test, See Union Hand In Shaping Policy

Congressional Republicans are pressing Labor Secretary Thomas Perez to release documents tied to the Solicitor’s Office drafting of contentious new guidelines for OSHA to decide if businesses should be treated as joint employers — effectively helping expand OSHA’s enforcement reach into franchises and similar business models — saying the policy leads OSHA astray from its core safety and health mission.

GOP leaders on safety and health oversight strongly suggest DOL formulated the guidelines in tandem with a forcefully contested National Labor Relations Board (NLRB) ruling having a similar effect on management-labor disputes. They seek answers from Perez about any collaboration that may have occurred with the labor board, which is structured to be an independent agency, and union officials.

Lawmakers also demand data from OSHA on any role Service Employees International Union (SEIU) may have played after backing an organized group that filed numerous OSHA complaints early this year against McDonald’s, a main target of unions not only on safety and health but other working conditions.

GOP members are escalating a fight that began this summer after NLRB’s decision in the closely watched Browning-v Ferris Industries case, in which the split board expanded the definition of a “joint employer” for purposes of labor law to include corporations such as franchisors. At around the same time a Labor Solicitor’s internal memo surfaced that instructed OSHA field staff on a list of topics investigators should explore in determining joint employer status for applicability of OSHA regulations.

Republicans saw a direct correlation. Sen. Lamar Alexander (R-TN), chair of the Labor Committee with OSHA oversight, suggested in a government affairs hearing that there might be a direct link between the controversial NLRB ruling and the leaked DOL memo. The subject came up during a wider probe of the Labor Department’s use of guidance documents to implement policy changes, though a Labor Department official told Alexander the solicitor’s memo was not a guidance document akin to those interpreting OSHA regulations.

House lawmakers followed up this month, with leaders of the workforce committee questioning Perez on whether any connections took place among OSHA, NLRB and SEIU on the joint employer determination. They argued the solicitor’s memo wanders far afield of the safety and health agency’s role and that OSHA already has a “robust multiemployer citation policy,” citing a 1999 agency directive.

“Now, without any public notice or warning, the Solicitor’s memorandum would instruct OSHA inspectors to delve into unrelated matters — financial and otherwise — far outside their expertise,” according to the letter from Reps. John Kline (R-MN), the committee chair, and Tim Walberg (R-MI), chair of the workforce protections subcommittee.

“Drifting further from the agency’s core mission, inspectors would have to consider ‘brand standards,’ menu and product creation, and the use of specific computer systems,” the lawmakers say. “Inspectors would consider these and other questions that move far beyond the ‘safety control’ factors OSHA currently considers before issuing a multiemployer citation.”

GOP lawmakers want a wide range of information, documents and communications records from the labor Department concerning the policy shift. Their demands come just weeks after the International Franchise Association filed a sweeping Freedom of Information Act request with OSHA regarding the joint employer determination.

OSHA and the Labor Department had no immediate comment on the GOP letter, with an agency spokeswoman telling Inside OSHA Online in an email Wednesday that “we have received the letter and are reviewing it.” Department officials did not respond to whether there had been any coordination with NLRB regarding the joint employer stance, and an official at the labor board could not be immediately reached.

SEIU’s press office did not respond to a call asking for comment.

Republican committee leaders want several sets of information from DOL by Oct. 27 — at least a week ahead of briefing congressional staff on their concerns — including:

  1. Factors OSHA inspectors currently must consider in citing multiple employers.
  2. All meetings between the Labor solicitor and any other department agencies, with related documents, concerning the multiemployer test.
  3. All meetings between the department and NLRB related to the policy change.
  4. All meetings between the department and stakeholders including SEIU, related to complaints the union made around March 16 (referring to the McDonald’s situation).
  5. DOL’s legal justification for the new policy under the OSH Act, including the difference between OSHA’s existing multiemployer policy and the new memo.
  6. A description of the timing and manner by which DOL will respond to the franchise group’s FOIA request.
    — Christopher Cole ()


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