June 24, 2016
This week, House Appropriations Committee Member Henry Cuellar (D-TX) asked the Committee to include in the FY 2017 National Labor Relations Board funding bill a provision to block implementation of the Board's joint employer rule. That rule, established in the Board's 2015 Browning-Ferris Industries decision, overturned years of established precedent, in which the determination focused primarily on the amount of control an employer had over the terms and conditions of employment of the other employer's employees. This has been replaced by a determination of whether there is a potential "right" to exercise "indirect" control. In general, responses to most of the Obama NLRB's controversial rulings have split along party lines. However, the joint employer decision's potential impact on franchisees and other small businesses in virtually every congressional district has reportedly raised concerns among some Democrats, though few have spoken out. While Cuellar is considered one of the most conservative Democrats, his request nevertheless represents a potential for a larger cleavage in the party on the issue. It is very likely that the Republican majority will agree to Cuellar's request, but the survival rate of appropriations riders blocking Obama administration rulings has been minimal at best.