March 7, 2018   
Ryan Williams



Congress Must Fix Obama’s Joint Employer Mess


Newt Gingrich
March 5, 2018
Fox News


The recent National Labor Relations Board (NLRB) decision that effectively reinstated the Obama era’s over-reaching joint employer regulation is a perfect example of how the left plays by its own set of rules.

The joint employer rule made headlines in 2015 when the NLRB, under President Obama, rewrote the definition of what the government considered a “joint employer.”

Traditionally, a joint employer was an employer who shared direct control over an employee’s workplace or employment with another employer.

The idea was that since all employers shared and exercised similar and immediate control over employees, all should be responsible for making sure the employees had safe and reasonable working conditions. It also meant all joint employers were responsible for mistakes or bad behavior at their businesses.

President Obama’s NLRB, however, decided employers with even indirect control are considered joint employers. This immediately increased legal liability and the complexity of executing basic operations for franchisors and contractors across the United States – including the estimated 760,000 franchise locations in our country.

In response to this enormous government-imposed risk, chain businesses such as restaurants and retailers had more incentive to own all of their individual branches rather than sell franchises. This erased opportunities for small business owners nationwide. For this reason, in December, the labor board under the Trump administration voted to overturn the Obama-era’s destructive, over-reaching rule.

However, the left did not go quietly.

In a February report – at the urging of Sen. Elizabeth Warren of Massachusetts and fellow Democrats – the labor board’s inspector general claimed that one of President Trump’s appointees, Board Member William Emanuel, should have recused himself from the December vote to overturn the Obama-era’s employer rule.

The Democrats said they made this assertion due to Emanuel’s former law firm’s involvement with one of the clients in the 2015 Browning-Ferris decision, which established the indirect control definition of a joint employer. The inspector claimed this could have caused potential conflicts of interest when Emanuel later voted in the recent December decision that overturned the Obama-era Browning-Ferris ruling.

However, the same NLRB inspector general didn’t seem to have any problem when former Obama appointee Craig Becker made rulings on cases in which chapters of the Service Employees International Union (SEIU) was involved.

Before joining the NLRB, Becker served as associate general counsel for SEIU. Keep in mind, President Obama’s conflict-of-interest rules were nearly identical to President Trump’s.

Around the time of his appointment, Republicans repeatedly called for Becker’s recusal in SEIU-related cases based on the conflict, and he refused. In fact, as I pointed out during my 2012 presidential campaign, Becker is so radically anti-business, he couldn’t even get confirmed when Democrats controlled the Senate. President Obama had to put him in place with a recess appointment.

Raymond J. LaJeunesse thoroughly analyzed this Democratic double-standard in a recent column for The Federalist Society. Also, one private labor and employment attorney separately noted, according to Allen Smith at the Society for Human Resource Management, that “Becker’s refusal to excuse himself from cases involving the SEIU set a precedent for Emanuel being involved in the Hy-Brand case.”

Finally, Emanuel already addressed the complaint about his involvement in Hy-Brand in a letter to lawmakers saying that his former firm, Littler Mendelson, “is a huge law firm of more than 1,000 lawyers,” and that he was “unaware that Littler had ever represented any party when the (2015) case was before the board.” It is true that Emanuel said he would clarify parts of his statement. However, the NLRB vacated the December decision before he got the chance.

Aside from reviving a terrible, job- and opportunity-killing policy, this declaration by the labor board’s inspector general clearly shows that the arrogant, hypocritical left gets to play by its own rules.

This double-standard essentially bars any labor attorney who has previously worked at a large law firm that represents companies in labor disputes from participating on the labor relations board, while allowing union lawyers to do as they please. In addition to effectively turning the NLRB into a taxpayer funded, pro-union body, this undermines Republican presidents’ ability to appoint pro-market board members in the future.

The House has already passed a bill that will permanently define a “joint employer” under the direct control standard and eliminate the Obama-era’s ambiguous, overreaching joint employer indirect control rule. It’s now up to the Senate to pass it. Otherwise, Warren and her liberal friends will keep using this left-leaning, pro-union double-standard to their advantage.

Newt Gingrich is a Fox News contributor.  A Republican, he was speaker of the United States House of Representatives from 1995 to 1999.  

To access the op-ed, click here.


The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace.  To learn more, please visit:

To schedule an interview with a Workforce Fairness Institute representative, please contact Ryan Williams at (202) 677-7060.


Tell Congress: Stop the PRO Act

WFI is working to prevent passage of the so-called Protecting the Right to Organize Act (PRO Act)—a wholesale labor reform package that takes the current careful balance of labor rules and tips it greatly in the favor of labor bosses and forced collective bargaining.

The PRO Act robs workers of the right to a secret ballot to form a union, forces union contracts on workers without a vote of approval, and expose workers’ personal contact information to union bosses seeking to organize a workplace. And that’s just the start.

Help us speak out against this woefully misguided and blatantly anti-worker legislation. Review and send the message below to your members of Congress today.

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WFI Key Vote Letter: Opposition to PRO Act

— 02.10.2020 —
Dear Speaker Pelosi and Minority Leader McCarthy: On behalf of the Workforce Fairness Institute (WFI), I am writing to share our organization’s vehement opposition to H.R. 2474, the Protecting the Right to Organize Act (PRO Act). WFI has serious concerns with the broad, overreaching nature of this legislation and the many ways in which it would undermine worker freedom and privacy, while simultaneously threatening businesses and entire industries that keep America’s economy thriving. Please note that WFI will include votes on the PRO Act and its amendments on our Congressional Labor Scorecard, which scores and ranks legislators based on their activity associated with workplace issues. WFI was established to fight for American employees and employers as well as our entire economy. We believe in worker empowerment, the right of workers to be fully informed of the options available for worker-involvement in the workplace, and the right to freely choose whether to organize or not. No individual or group – government, a union or an employer – should be able to intimidate or restrict workers’ in exercising these rights. In an attempt to boost flailing union membership at the expense of workers’ rights, the PRO Act would upend decades of established U.S. labor law and institute myriad anti-employee and anti-employer policies that have already been soundly rejected—by Congress, various federal agencies, or the courts. Among its most blatant affronts to workers’ rights, the PRO Act would eliminate the right to a secret ballot when determining whether to unionize and enforce a “card check” system, exposing workers to the potential for harassment, intimidation, and coercion. The PRO Act would also enforce binding arbitration in union negotiations by a government- appointed bureaucrat; repeal and eliminate right-to-work laws in 27 states, force workers to fund union activities regardless of whether they support them; and threaten the ability of individuals to operate as independent contractors, eliminating traditional economic and employment opportunities and threatening the independence and flexibility of the emerging gig economy. On top of all that, the PRO Act would force all workers’ personal and home contact information to be provided to a union during organizing campaigns – in an electronic, searchable format no less, with no limit on what a union can do with that information. WFI believes in advancing sensible policies that protect and preserve the rights of both employees and employers, and we welcome the opportunity to work with legislators who also support these efforts. However, the PRO Act does not achieve these goals and would instead threaten the rights of both while jeopardizing our entire economy. WFI urges members of the House to strongly oppose the PRO Act. Sincerely, Heather Greenaway Executive Director Workforce Fairness Institute See the letter here.
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