National Labor Relations Board Member Phillip Miscimarra and U.S. Representative Bradley Byrne (AL-1) electrified the crowd of attorneys at IFA’s 2016 Legal Symposium this week with their respective speeches on the new joint employer standard and other problematic regulations.
Member Miscimarra’s captivating speech used a variety of diagrams stemming from his dissent in the bombshell Browning-Ferris Industries case, wherein the majority’s opinion upended the long-standing joint employer standard. Miscimarra’s primary point was the majority’s opinion in the case does not clearly define how new collective bargaining agreements will be made with clients of contractors and subcontractors. In his view, the nebulous nature of the standard does not provide guidance for many situations, like when a client no longer uses a contractors’ services, or if a new client joins an existing collective bargaining agreement relationship. This nebulousness results in widespread uncertainty for small business owners, who no longer know for sure if their contractual relationships are in compliance with the law.
Rep. Byrne began his speech speaking about unions’ influence on the current administrations executive agencies, citing the push for ‘card check’ legislation as evidence waning union membership is driving union leaders to seek extraordinary concessions. Furthermore, Rep. Byrne noted the importance of a balanced dialogue on the pros and cons of unionization in the context of the persuader rule, saying the current “playing field is imbalanced”. The persuader rule would make it much more difficult for small business owners to seek out advice on labor law and union matters and also damages attorney-client privilege, as well as limiting information available to employees considering unionization.
A co-sponsor of the Protecting Local Business Opportunity Act of 2016, Rep. Byrne spoke at length about the negative effect the revised joint employer standard will have on franchise small business growth. He also talked about his son, whose first job at a restaurant taught him more about the real world than four years of business school, and how overregulation kills opportunities for young people trying to get their first job on the path to upward mobility.
Regardless of who is in the White House next year, it should be encouraging for franchise businesses to know there are agency officials and members of Congress like Rep. Byrne who remain concerned and active in pushing back regulatory overreach which is suppressing businesses and individuals’ growth potential.