A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to a "Standard for Determining Joint Employer Status".

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise in opposition to H.J. Res. 98, a Congressional Review Act resolution to repeal the National Labor Relations Board's joint employer rule, which the Board finalized last October.

Through their unions, workers should be able to negotiate for higher pay, better benefits, and safer workplaces. However, that is not the case for millions of Americans, including janitors, housekeepers, cooks, and many others who are employed through subcontracts or temporary agencies.

The rise of what is called ``fissured workplace,'' where firms increasingly use overlapping arrangements of contracting, subcontracting, and temping, has weakened workers' bargaining power and allowed large corporations to evade bargaining obligations and liabilities.

For example, if employees of a subcontractor were to unionize, the subcontractor could refuse to bargain over pay, hours, workplace safety, or other issues because its contract with the prime contractor essentially sets the wages for the employees. Whoever is setting the wages ought to be the one at the bargaining table.

If the workplace employer is essentially setting the wages, but you have to negotiate with the temp agency, and they say, ``That is all we can pay, so talk to somebody else,'' we need the somebody else at the table to be bargaining.

Likewise, a temp agency may be restrained on what it can pay because of the contract with the owner of the workplace.

Additionally, by evading bargaining obligations, the prime contractor who is actually setting the wages can shift liability for an unfair labor practice onto the subcontractor or the temp agency.

The NLRB rule fixes this problem by ensuring workers can negotiate with all entities controlling their working conditions. This protects small businesses from being held liable for labor violations that are the result of other employers' actions.

By repealing the NLRB's rule, H.J. Res. 98 would undermine workers' ability to exercise their rights and reinstate the deficient Trump-era rule that narrowed the joint employer standard. Under the Trump-era standard, employers who control the working conditions could easily evade their obligations to collectively bargain with employees.

We should not go backward. The Biden-Harris administration's joint

employer rule empowers workers and protects small businesses.

My colleagues have just claimed that there is a problem with franchisees and the franchising model. These claims are unfounded, as there is no credible evidence showing that the rule would adversely affect the franchise model.

In fact, if a problem arises, a strong joint employer standard will protect franchisees by ensuring the franchisors don't control the franchisees' labor relations and then leave the franchisees on the hook for the liabilities.

I want to highlight that the American Association of Franchisees and Dealers wrote in support of both the Protecting the Right to Organize Act--that is, the PRO Act--joint employer standard and the Biden-Harris joint employer rule that we are talking about today.

It is also important to point out that the NLRB has never found a franchisor to be a joint employer of a franchisee's employees.

The joint employer rule reflects the best interests of the American people and our economy.

Madam Speaker, I hoped that we would be standing with the workers and small business owners and not repeal a rule that protects them. I oppose the resolution, and I reserve the balance of my time.

Madam Speaker, I yield 2 minutes to the gentlewoman from Oregon (Ms. Bonamici), who is a senior member of our committee and the ranking member of the Subcommittee on Early Childhood, Elementary, and Secondary Education.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 4 minutes to the gentleman from California (Mr. Takano), a senior of our committee, and the ranking member of the Veterans' Affairs Committee.

Madam Speaker, I yield an additional 30 seconds to the gentleman from California.

Madam Speaker, I yield 3 minutes to the gentleman from California (Mr. DeSaulnier), the ranking member of the Subcommittee on Health, Employment, Labor, and Pensions.

Madam Speaker, I yield back the balance of my time.

Madam Speaker, I yield 2 minutes to the gentlewoman from Oregon (Ms. Hoyle).

Madam Speaker, may I inquire how much time is remaining on both sides.

Madam Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. Sorensen).

Madam Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Casar).

Madam Speaker, I include in the Record three letters in opposition to H.J. Res. 98. The first is signed by the AFL- CIO, SEIU, and Teamsters. The second is signed by the United Steelworkers. The third is signed by a diverse group of organizations, including the National Organization for Women, the National Partnership for Women and Families, The Leadership Conference on Civil and Human Rights, and many more.

November 2, 2023.

Dear Representative: On behalf of the 12.5 million workers

represented by the AFL-CIO, the 2 million workers represented

by SEIU, and the 1.2 million workers represented by the

International Brotherhood of Teamsters. we write to urge you

to support the National Labor Relations Board's (``NLRB'' or

``the Board'') recent final rule addressing joint-employer

status under the National Labor Relations Act (``NLRA'' or

``the Act''). This important rule will ensure that workers

have a real voice at the bargaining table when multiple

companies control their working conditions. Accordingly, the

undersigned unions strongly oppose any effort to nullify or

weaken the rule, whether by legislation or resolution under

the Congressional Review Act.

The rule, published on October 27, 2023, rescinds the Trump

NLRB's 2020 joint-employer rule and replaces it with an

updated standard that is based on well-established common-law

principles and consistent with recent D.C. Circuit decisions

identifying critical flaws in the Trump NLRB's approach to

this issue. The Board's updated rule is welcome and necessary

because the Trump rule was harmful to workers' organizing

efforts, inconsistent with the governing legal principles,

and against the policies of the Act.

The crux of this issue is simple--when workers seek to

bargain collectively over their wages, hours and working

conditions, every entity with control over those issues must

be at the bargaining table. The Act protects and encourages

collective bargaining as a means of resolving labor disputes.

Collective bargaining cannot serve that purpose if companies

with control over the issues in dispute are absent from the

bargaining table. The Trump rule offered companies a roadmap

to retain ultimate control over key aspects of workers'

lives--like wages and working conditions--while avoiding

their duty to bargain. This standard left workers stranded at

the bargaining table and unable to negotiate with the people

who could actually implement proposed improvements.

Companies are adopting business structures specifically

designed to maintain control over the workers who keep their

businesses running while simultaneously disclaiming any

responsibility for those workers under labor and employment

laws. Such businesses often insert second and third-level

intermediaries between themselves and their workers. These

companies seek to have it both ways--to control the workplace

like an employer but dodge the legal responsibilities of an

employer. This phenomenon is often called workplace

``fissuring.''

Fissured workplaces, sometimes involving staffing firms,

temp agencies, or subcontractors, often leave workers unable

to raise concerns, or collectively bargain with, the entity

that actually controls their workplace. In such arrangements,

multiple entities may share control over a worker's terms of

employment. For example, if employees of a subcontractor were

to unionize and bargain only with the subcontractor, it might

simply refuse to bargain over certain issues because its

contract with the prime contractor governs those aspects of

the work (e.g., pay, hours, safety, etc.). This harms workers

because the entity that effectively determines workplace

policy is not at the bargaining table, placing workers'

desired improvements out of reach.

The way to ensure that workers can actually bargain with

each entity that controls their work is to readily identify

such entities as ``joint employers.'' The Act requires joint

employers to collectively bargain with employees over working

conditions that they control. But the Trump NLRB's joint

employer rule was designed to help companies with such

control escape bargaining. The rule's standard for finding a

joint employment relationship was unrealistic and overly

narrow. It conditioned a company's joint employer status on

proof that it actually exercised substantial direct and

immediate control, discounting its reserved or indirect power

to control a small list of working conditions. This conflicts

with the governing common law principles, which make clear

that a company's power to control working conditions must

bear on its employer status (and thus its bargaining

responsibilities under the Act) regardless of whether it has

formally exercised that power. The new final rule correctly

rescinded the Trump rule.

Critics of the new rule claim that its joint employer

standard will outright destroy certain business models or

dramatically change operations. Opponents claim, for example,

that companies will be required to bargain over issues they

have no control over, or will be automatically liable for

another entity's unfair labor practices. This is simply

untrue and a further attempt to leave workers with no

opportunity to bargain with controlling entities. The final

rule makes it clear that a joint employer's bargaining

obligations extend only to those terms and conditions within

its control. And current Board law--unchanged by the rule--

only extends unfair labor practice liability to a joint

employer if it knew or should have known of another

employer's illegal action, had the power to stop it, and

chose not to.

Similarly, critics claim that the new standard imposes

blanket joint employer status on parties to certain business

models like franchises, temp agencies, subcontractors, or

staffing firms. This is also untrue. The rule does not

proclaim that all franchisors are now joint employers with

their franchisees, or that any company using workers from a

temp agency is automatically their employer. The particular

business model used by parties in any case is not

determinative. Instead, the Board looks at every case

individually, and grants companies a full and fair

opportunity to explain the underlying business relationship

and dispute whether they control the relevant workers'

essential terms and conditions of employment. The Board

conducts a fact-specific, case-by-case analysis that

considers whether the putative joint employer controls

essential terms and conditions of employment.

Make no mistake, the Board's rule may well result in the

employees of a staffing firm, for example, being treated also

as employees of the firm's client, but only if the client

controls the employees' terms and conditions of employment.

That is the only way workers can meaningfully bargain at

work. But even in that situation, the workers are deemed

employees only for purposes of the NLRA and collective

bargaining, and the client would be obligated to bargain only

about the terms it controls. It would still be up to workers

to choose whether they want to organize a union and

collectively bargain with their employer or employers.

Nothing in the NLRB's rule alters employers' responsibilities

under any other state or federal law (e.g., tax laws, wage

and hour laws, or workplace safety laws) or requires any

changes to business structures. But it does make clear their

responsibility under the NLRA to show up at the bargaining

table.

The new rule is clear and commonsense: there is no

bargaining obligation for an entity that cannot control

workplace policies or working conditions. And for good

reason--their presence at the bargaining table would be

pointless. Workers have no interest in bargaining with a

company that lacks the power to implement the workplace

improvements they seek.

This rule simply invokes a more realistic joint employer

standard on par with the standard enforced during the Obama

administration, allowing a company's indirect or reserved

control over working conditions to be sufficient for finding

joint employer status. Workers' right to collectively bargain

cannot be realized if the entity that has the power to change

terms and conditions of employment is absent from the

bargaining table.

For the reasons explained above, the undersigned unions

oppose any effort to nullify the Board's rule. In particular,

we urge Congress to oppose efforts to nullify the rule under

the Congressional Review Act (``CRA''). Here, a successful

CRA disapproval resolution would be particularly harmful: it

would revert the NLRB's joint employer standard to the Trump

Board's 2020 rule, which stymies workers at the bargaining

table. And further, as explained above, at least one federal

appeals court has strongly suggested that provisions of the

2020 rule are inconsistent with the NLRA, so litigation would

likely invalidate that rule as well. This would create

confusion for the workers, unions, and employers regulated by

the NLRB. Not only could the two standards be nullified,

leaving the Board's joint employer analysis in limbo, but the

NLRB's ability to address that limbo would be unclear due to

CRA limitations.

The CRA provides that once a disapproval resolution is

passed, the underlying agency cannot issue a subsequent rule

in ``substantially the same form'' as the disapproved rule

unless it is specifically authorized by a subsequent law.

Thus, if the Board's new rule is nullified under the CRA, and

the prior Trump rule is invalidated by federal courts, the

NLRB would be limited in issuing a clarifying rule. To avoid

confusion and ensure stability for workers, unions, and

employers, Congress must steer clear of using the CRA to

address the joint employer standard.

For these reasons, we ask that you support the NLRB's joint

employer rule and oppose any effort to weaken or nullify the

clarified standard.

Sincerely,

Madam Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, just very briefly, the joint employer rule would only weaken the critical protections for workers that congressional Democrats and President Biden have fought so hard to enact. This rule only requires that those who can control the conditions of work actually be at the bargaining table when the conditions of work are being negotiated. Without this kind of rule, employees would be stuck trying to negotiate wages with a temp agency that has no control over the wages.

We have heard a lot about the franchisee situation. Mr. Speaker, I include in the Record a comment letter from the American Association of Franchisees and Dealers that points out that franchisors should be at the bargaining table if they are, in fact, controlling the conditions, as this rule provides and as the resolution would overturn.

American Association of

Franchisees & Dealers,

Palm Desert, CA, December 7, 2022.

Re AAFD Comments on Proposed Joint Employer Rule (87 Fed.

Reg. 54641).

Lauren McFerran,

Chairman, National Labor Relations Board,

Washington, DC.

Roxanne L. Rothschild,

Executive Secretary, National Labor Relations Board,

Washington, DC.

Dear Chairman McFerran and Ms. Rothschild: On behalf of the

American Association of Franchisees and Dealers (``AAFD'')

and its franchisee members, we respectfully offer our views

and perspective on the September 7, 2022 National Labor

Relations Board proposed rule that would expand the joint

employer definition under the National Labor Relations Act.

The joint employer debate is critical to the long-term equity

ownership question of the franchised businesses.

AAFD is the oldest and largest national not for profit

trade association advocating the rights and interests of

franchisees and independent dealer networks. The AAFD

supports more than 60 independent franchisee associations and

trademark specific chapters, representing thousands of

franchisee operated business outlets. Since our establishment

in 1992, the AAFD has focused on its mission to define,

identify and promote collaborative franchise cultures that

respect the legitimate interests of both

franchisers and franchisees, cultures we describe as

embracing our vision of Total Quality Franchising. The AAFD

came into existence in response to a franchising community

that has been evolving towards increasingly one-sided and

controlling franchise agreements and cultures whereby

franchisee equity and business ownership has been continually

eroding such that many modern franchise systems have lost all

vestiges of business ownership. Interestingly, instructively

and importantly, we make special note that the very issues

that inspired the formation of the AAFD have also given rise

to the Joint Employer doctrine.

For the reasons set forth below, AAFD urges the NLRB to

adopt a joint employer standard that respects NRLB's decision

in Browning-Ferris Industries of California, Inc., d/b/a BFI

Newby Island Recyclery, 362 NLRB No. 186 (2015), and

reaffirmed by the Court of Appeals for the DC Circuit, yet

takes into account the unique relationships between the

franchisees and franchisor needed to protect the brand.

Franchisor Community Misdirection Regarding the Definition and

Foundation of Joint Employment Status

Franchisees respect a franchisor's ownership and control of

its brand and a legitimate right to enforce system standards

to protect the brand, and franchisees depend and rely on the

list of benefits and support services from their franchisor.

We do not believe that the many services franchisors

historically provide to franchisees, and which have been

disingenuously withdrawn under the `guise' of the joint

employer threat are, or should be, the focus of the joint

employment standard.

Rather, the `test' of joint employer status should be

determined based upon the amount of economic control a

franchisor directly or indirectly exerts by use of the

franchise agreement, operations manual, or other means, over

its franchisees and which negatively impact and eviscerate a

franchisee's equity ownership in the franchised business.

We have specifically been asked to comment on the added

economic burden placed on franchisees when their franchisor

backs away from services in order to avoid Joint Employer

attribution. It should be no surprise from our firm

contention that franchisors unduly focus their arguments on

matters of control on their legitimate interests (and we

contend duties) to control and protect brand standards. As

part of the franchisor's playbook to insulate itself from

joint employer classification is to withdraw franchisee

support of human resource services, placing an added economic

burden on its franchisees. The AAFD contends that a

franchisor's withdrawal of such services is a canard, indeed

an integral part of the strategy to misdirect attention from

the real issues and is intended to secure franchisee

opposition to the joint employer doctrine. Stated simply, in

the franchising context, a franchisor's provision of human

resources to its franchisees should play a negligible role in

determining whether the joint employer doctrine should apply

to a franchisor's undue control over its franchisee's equity.

We contend that the human resources services traditionally

provided by a franchisor are appropriate for the protection

of any brand's important standards of service, products and

reputation that are properly a part of brand standards. That

said, we recognize that the joint employer doctrine is built

upon the traditional evaluation of master/servant and

employer/employee characteristics that we believe distract

from the real issues of control to subvert and diminish

franchisee equity interests. We believe that much of the

franchisor community is engaging in the art of misdirection

in its arguments, tending to avert attention from the real

economic basis for its opposition to the Browning-Ferris

joint employer standard which is a bedrock of the traditional

common law standard which incorporates both reserved and

exercised control. The real concerns are the right to assert

economic control, not the enforcement of legitimate brand

standards, and include:

1. The claim that all the goodwill of the franchised

business belongs to the franchisor, without any recognition

of equity ownership by the franchisee whose capital and sweat

equity are a major component of a franchise unit's existence

and success.

2. Control over the ownership of the franchise location

whereby the franchisor owns or controls the real estate which

is leased or sublet to the franchisee impacting the

franchisee's ownership of the business.

3. Abusive control or ownership of the assets of the

business, such that a franchisee is little more than a

sharecropper running the business for the benefit of the

franchisor. Indeed, regarding McDonalds, it should be noted

that McDonalds no longer refers to `franchisees' in its

agreements. In full claim of ownership, a McDonald's licensee

is referred to legally as an `operator' of a business that

McDonald's fully owns.

4. The exercise of abusive control over the suppliers and

supply chain of the of the operation. Far and beyond the

enforcement of necessary system standards, many franchisors

dictate sole sources of supply for the purpose of marking up

the goods and services being purchased by franchisees, and

regardless of the connection to the brand or brand standards.

Franchisors now dictate where to buy insurance, process and

control customer payments, and even business supplies, as

well as dictating the source of brand related commodities--

all of which could be potentially purchased at lower cost

from competitive sources.

5. Control over the cost of labor by setting hours of

operation that are not realistic for a particular franchise

unit.

The Solution to the Joint Employer Dilemma

We join the industry in urging the NLRB to recognize the

legitimacy of protecting brand standards, and to place its

definition of joint employment on the real matter of `who

owns the franchised business equity.' The debate around joint

employer is critical because it includes the broader debate

beyond the impact of labor practices and also includes the

question on who has control over the day-to-day business

practices and who owns the equity in the business. We

recognize that to refocus the inquiry of joint employer

attribution in franchising may require some legislative

revisions to the definition of `control' to the control of

equity (which is not a question in the typical master servant

discussion). However, we believe that our solution to provide

a franchisor exemption is completely consistent with the

premise of the NLRA, and within the authority of the NLRB.

In establishing its test for Joint Employment, and

advocating for the Browning-Ferris joint employer standard,

we urge the NLRB to focus on minimum equity concerns:

1. The right to grow the business and manage its costs of

operations, including the management and control of labor,

goods, products and services purchased for operations.

2. The right to stay in business, to sell the business, or

to transfer the business to heirs.

3. The right to manage the business finances, especially

the right of the franchisor to pull funds from the

franchisee's bank accounts, or whether the franchisee has the

power over its own checkbook.

4. The very important, albeit sensitive, right to control

the cost of supplies and suppliers. A significant promise of

franchising is the power of volume purchasing, but the

ability of a franchisor to dictate suppliers is fraught with

the potential for abuse. A key inquiry to determine whether a

franchisor has crossed the line of control over the business

is whether the franchisee's interests are respected and

protected where a franchisor reserves significant control

over the franchisee's source of supplies.

5. Similarly, the control over the marketing budget is

critical to a successful franchise system. A franchisor may

control most of the marketing fund, but a line is crossed

when a franchisee retains no ability to influence and direct

its marketing dollars.

Quite simply, the solution to the joint employer `threat'

for franchise systems is to recognize franchisee equity

ownership to franchisees in a sufficient amount that the

franchisee is deemed to be the `owner' rather than a mere

`operator' of the franchised business.

The AAFD's Franchisee Bill of Rights Provides the Appropriate Tests for

Excessive Control

We submit the Franchisee Bill of Rights (attached), as

appropriate criteria to measure and test whether a franchisor

has crossed the line of excessive control. The Franchisee

Bill of Rights provide fourteen indicia of a franchise system

that respects the equity interests of franchisees.

It is instructive to note that the Franchisee Bill of

Rights actually recognize, even require, a franchisor to

provide and support brand standards. Providing the expected

`control' over brand standards should not be the

determinative criteria for joint employer. We urge the focus

on relative equity: the determination of whether the

agreement and relationship fairly recognize that the

franchisee has a significant equity right in the franchised

business.

Proposal to Create a Franchisor Exemption from Joint Employer

attribution for Franchise Systems that Recognize an independent

franchisee association and offer a collectively bargained franchise

agreement

The comparison of franchisee associations to labor unions

is inevitable and appropriate. Owners of franchised small

businesses organize for reasons that are similar to the

reasons that employees form unions: to collectively bargain

the rights and benefits of agreements of their engagement to

provide services to their franchisor or employer. At its

core, the National Labor Relations Act that established the

NLRB was enacted to establish the right of employee groups to

organize, and the NLRA recognizes important exemptions for

companies that recognize unions and have a collectively

bargained employment agreement that is ratified by a majority

of union members and employees.

AAFD urges that a franchisor that has recognized an

independent owners association and has embraced a

collectively bargained franchise agreement that has been

ratified by a majority of franchisees should also be exempt

from the consequences and penalties arising from being

determined to be the `joint employer' of a franchisee's

employees. In this regard, it should be noted that the AAFD

has established an accreditation for franchisors that meet

these tests which we label as our ``Fair Franchising Seal.''

To date, 19 brands have been accredited by the AAFD, all of

which have franchise agreements that recognize franchisee

rights and equity interests while reaffirming the

franchisor's essential interest in protecting

its brand standards. In essence, just as recognized in the

NLRA, where the agreement defining rights and obligations has

been collectively bargained, the reasons behind the purpose

of the law have been met by the marketplace effectively doing

its job!

Cooperation with the Federal Trade Commission

We also urge the NLRB to work closely with the Federal

Trade Commission on defining aspects of the relationship that

exceed normal control in a brand. The franchise industry has

many unique attributes, and the FTC is the federal agency

most engaged with oversight of the industry. Many items, such

as uniforms and training, which are critical to the existence

of the brand, are immaterial to the employment relationship,

and should not create joint employer status.

Conclusion

The AAFD appreciates the concerns of the NLRB, with respect

to creating an appropriate `test' for when a franchise system

has crossed a line and become the `joint employer' of a

franchisee's putative employees. We believe that many

franchisors exercise so much control over the franchised

business that the franchisee retains limited if any equity

ownership, or control over, in the franchised business. In

such circumstances it is appropriate to deem the franchisor

as the joint (and sometimes even the sole) employer of the

franchised business employees. But we also believe that the

establishment, support and enforcement of brand standards are

not the appropriate target of any control test. Rather, the

inquiry should be focused on the economic rights of business

ownership that is promised and expected in a franchise

relationship. Fair and balanced franchise agreements and

relationships that respect the Franchisee Bill of Rights will

provide and meet an appropriate test for determining joint

employer status.

Respectfully submitted,

Robert L. Purvin, Jr,

Chair, Board of Trustees.

Richard E. Stroiney,

Chief Operating Officer and Executive Director.

Keith R. Miller,

Director of Public Policy and Engagement.

Mr. Speaker, instead of advancing H.J. Res. 98, the House should prioritize legislation such as H.R. 20, the Protecting the Right to Organize Act, or the PRO Act, that strengthens workers' abilities to organize and collectively bargain.

This resolution goes in the exact opposite direction. For those reasons, I oppose the resolution and encourage all Members to do the same.

Mr. Speaker, I yield back the balance of my time.

Madam Speaker, pursuant to House Resolution 947, I call up the

joint resolution (H.J. Res. 98) providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to ``Standard for Determining Joint Employer Status'', and ask for its immediate consideration in the House.

Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and include extraneous material on the resolution under consideration.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, House Republicans are coming to the rescue of small business owners once again. The House will soon vote on a bipartisan Congressional Review Act resolution to rescind President Biden's antifreedom, antigrowth joint employer rule.

Business-to-business relationships are fundamental to American commerce. At its most basic level, a joint employer standard should ensure that the entity calling the shots in the workplace is legally liable. That is why it is important to get this right.

Under the Trump National Labor Relations Board rule, it was right. The Trump NLRB made sure that clear criteria were met before an employer was deemed legally liable for an individual's employment conditions.

Critically, the Trump rule recognized that the ability of businesses to control their destinies is a pillar of the American Dream. It established a standard that enticed countless men and women to start and grow small businesses and employ millions of workers.

The Biden NLRB upended this easy-to-understand joint employer standard that promoted economic growth and job creation. Under the new joint employer rule, small business owners are going to be compelled to acquiesce to more Big Government regulation and union boss control.

Here is why: The traditional Trump rule stated that two or more businesses were considered joint employers under the National Labor Relations Act if they shared actual, direct, and immediate control over the essential terms and conditions of employment, including hiring, firing, discipline, supervision, and direction of employees. This predictable and clear standard ensured employers would not be saddled with collective bargaining obligations or with liability of a company they do not control.

Under the Biden NLRB rule, an employer now includes those who have only indirect or even potential control over employees' essential terms and conditions of employment. Like a rerun of a low-rated TV show, we have seen this story before.

While the Trump Board restored the commonsense, traditional joint employer standard, the Biden NLRB's rule largely revives an Obama-era standard. The Obama NLRB upended decades of precedent and broadly expanded the definition of joint employment. That means working families and small businesses are up against a confusing and damaging new rule from Biden's NLRB, which will sow confusion and destabilize the economy in a time when persistently high prices are crushing hardworking Americans.

The results from Obama's joint employer rule give us an eerie glimpse of what is to come. Franchise operational costs increased by $33 billion. The decision caused 376,000 lost job opportunities in the franchise sector alone. It increased NLRB unfair labor practice charges by 93 percent, imposing significant litigation costs on businesses, both large and small.

Special interests are hard at work attempting to sweep these facts and the failed historical record under the rug. The AFL-CIO purports that the rule will in no way threaten or disrupt franchise arrangements or staffing firms. Big Labor set the line, and the Biden administration took the bait--hook, line, and sinker.

Moreover, this is not the only myth Big Labor is spreading about the resolution. Let me be clear. This resolution does nothing to restrict union activity. It does not alter the rights afforded to workers under the National Labor Relations Act. What it does is ensure the appropriate parties meet at the bargaining table to resolve labor disputes.

While the Biden NLRB's joint employer rule takes the side of the special interest masters, House Republicans have heard the pleas and are taking the side of workers, small businesses, and the American entrepreneurial spirit.

Congress must stand with franchisees, small and large business owners, and millions of workers by voting with a bipartisan mandate to rescind the Biden NLRB's joint employer rule.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Good).

Madam Speaker, I yield 1 minute to the gentleman from Texas (Mr. Williams), the distinguished chair of the Small Business Committee.

Madam Speaker, I yield 2 minutes to the gentleman from Oklahoma (Mr. Hern), chair of the Republican Study Committee.

Madam Speaker, I yield 5 minutes to the gentleman from Michigan (Mr. James), and the prime sponsor of the resolution.

Madam Speaker, I yield 2 minutes to the distinguished gentleman from California (Mr. Obernolte).

Madam Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Van Duyne).

Madam Speaker, I yield 2 minutes to the gentleman from Michigan (Mr. Walberg).

Madam Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Allen).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I include in the Record a letter from the National Asian/Pacific Islander American Chamber of Commerce and Entrepreneurship, U.S. Black Chambers, and U.S. Hispanic Chamber of Commerce supporting H.J. Res. 98.

January 3, 2024.

Dear Member of Congress: On behalf of the undersigned

organizations representing millions of minority-owned

businesses across the United States, we write in support of

the joint Congressional Review Act resolution concerning the

National Labor Relations Board's (NLRB) joint-employer rule.

As discussed below, we support this bipartisan measure

because of the opportunities it represents to bridge the

racial wealth gap through entrepreneurship and fair

competition. While our organizations agree with the aim of

the National Labor Relations Act and the mission of the NLRB,

this rule represents a broader need to modernize our laws for

the diverse economy of the 21st century.

On October 26, 2023, the NLRB released a final rule setting

forth a new standard for joint employer status under the

National Labor Relations Act (NLRA). This rule would have a

concerning impact on all small businesses, contractors, and

franchisees around the country who could be held liable for

potential NLRA violations for employees that they do not

directly control, just by the virtue of entering a standard

business-to-business contract.

We write you today, however, because we believe this rule

could particularly impact minority-owned small businesses and

franchisees that rely on these contracts to sustain and grow

their businesses. The rule will take effect on February 26,

2024, unless Congress acts.

The franchise model has been a driver for minority

entrepreneurship and job creation, by allowing budding

entrepreneurs to partner with well-known brands and bolster

local ownership of Main Street businesses around the country.

It has also been particularly successful on ramping first-

and second-generation immigrants into business ownership. We

believe that the unintended consequences of this rule could

threaten the entire franchise modal. It is our experience

that when business models are transformed--for better or

worse--the minority community, often under-capitalized,

shoulders a disproportionate burden of the immediate harm. We

are very concerned that what will remain of the franchise

model could undo progress toward diversity and inclusion in

this major sector of the economy.

This is particularly harmful at a time when minority

entrepreneurs are just beginning to reap the benefits of this

model. A recent study found that minority entrepreneurs are

more likely to own franchised businesses as opposed to non-

franchised businesses. The franchise model can be a helpful

tool to encourage higher rates of entrepreneurship among

women, minorities, and other underrepresented groups. Below

are some of the key findings:

Nearly one-third (32%) of survey respondents said they

would not own a business without franchising. Women and other

first-time businessowners were even more likely to consider

the franchise opportunity as critical to their ability to

launch a small business.

Nearly one-third (26%) of franchises are owned by

minorities, compared with 17% of independent businesses.

On average, Black-owned franchises earn 2.2 times more than

Black-owned independent businesses; Hispanic-owned franchises

earn 1.6 times more than Hispanic-owned independent

businesses; and Asian-owned franchises earn 1.4 times more

than Asian-owned independent businesses.

Beyond the concerns of the minority franchisee community

that we represent, we also believe this rule could harm

minority business success subcontracting to large prime

contractors. Subcontracting is an important pathway for

businesses that are just starting--which in recent years are

more likely to be owned by minorities and women. This rule

similarly threatens the relationship between subcontractors

and their prime partners, undoing the important work that has

already been done to diversify our supply chains.

For these reasons, we ask you to support the Congressional

Review Act joint resolution of disapproval (H.J. Res. 98/S.J.

Res. 49) to undo the NLRB's final rule on joint employer

status. We must all collectively then ensure that policies

that support a modern, diverse economy are at the front of

the legislative calendar in the new year.

Sincerely,

National Asian/Pacific Islander American Chamber of Commerce

and Entrepreneurship (National ACE).

U.S. Black Chambers, Inc.

U.S. Hispanic Chamber of Commerce.

Mr. Speaker, this letter raises concerns about the NLRB joint employer rule's ``impact on all small businesses, contractors, and franchisees around the country.''

Particularly, the letter notes that the rule could ``impact minority- owned small businesses and franchisees that rely on these contracts to sustain and grow their businesses.''

The letter continues: ``The franchise model has been a driver for minority entrepreneurship and job creation by allowing budding entrepreneurs to partner with well-known brands and bolster local ownership of Main Street businesses around the country. It has also been particularly successful on ramping first- and second-generation immigrants into business ownership.''

Mr. Speaker, I urge my colleagues to consider these views, vote ``yes'' on H.J. Res. 98, and overturn the Biden NLRB joint employer rule. I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, I include in the Record a letter from a coalition of more than 70 organizations, led by the International Franchise Association, supporting H.J. Res. 98.

November 9, 2023.

Support Using the Congressional Review Act to Overturn the NLRB's Final

Joint-Employer Rule

Dear Member of Congress: The undersigned organizations, on

behalf of a diverse group of workers, small businesses, and

critical sectors of our economy, write in strong support of

H.J. Res. 98/S.J. Res. 49, a joint resolution of disapproval

under the Congressional Review Act to nullify the National

Labor Relations Board's (NLRB) Final Rule on Joint-Employer

Status. This misguided rule will harm millions of workers and

small businesses across the country, and we urge you to vote

to protect your constituents from the NLRB's overreach.

Issued in October 2023, the NLRB's Final Joint-Employer

Rule institutes an unworkable, overly broad set of

circumstances under which a company is considered a ``joint

employer'' under federal law. The Final Rule will cripple

small businesses in numerous sectors by exposing them to

frivolous litigation, eliminating jobs, and slowing wage

growth across the country--just like it did when a similar

standard was implemented in 2015. At a time of continued

economic uncertainty, it is alarming that the NLRB has chosen

to move forward on such a divisive and damaging joint

employer rule.

Fortunately, in the coming weeks, members of Congress will

have the opportunity to vote to nullify the NLRB's Joint-

Employer Final Rule by utilizing the Congressional Review

Act. By voting in favor of H.J. Res. 98/S.J. Res. 49, members

can demonstrate that they support workers and small

businesses in their states. Accordingly, we urge your support

for nullifying the NLRB's Final Rule and look forward to our

continued partnership.

Sincerely,

Air Conditioning Contractors of America; American Bakers

Association; American Car Rental Association; American Health

Care Association; American Hospital Association; American

Hotel & Lodging Association; American Pipeline Contractors

Association; American Seniors Housing Association; American

Staffing Association; American Supply Association; American

Trucking Associations; Argentum; Asian American Hotel Owners

Association; Associated Builders and Contractors; Associated

Equipment Distributors.

Associated General Contractors of America; CAWA--

Representing the Automotive Parts Industry; Coalition to

Promote Independent Entrepreneurs; Family Business Coalition;

FMI--The Food Industry Association; Franchise Business

Services; Global Cold Chain Alliance; Heating, Air-

conditioning, & Refrigeration Distributors International; HR

Policy Association; IHRSA--The Health & Fitness Association;

ICSC; Independent Electrical Contractors; International

Foodservice Distributors Association; International Franchise

Association; International Warehouse Logistics Associations.

NATSO, Representing America's Travel Plazas and Truckstops;

National Association of Convenience Stores; National

Association of Electrical Distributors; National Association

of Home Builders; National Association of Manufacturers;

National Association of Professional Employer Organizations;

National Association of Realtors; National Association of

Small Trucking Companies; National Association of Wholesaler-

Distributors; National Center for Assisted Living; National

Cotton Ginners Association; National Council of Chain

Restaurants; National Federation of Independent Business

(NFIB); National Franchisee Association; National Grocers

Association.

National Lumber & Building Material Dealers Association;

National Multifamily Housing Council (NMHC); National Ready

Mixed Concrete Association; National Restaurant Association;

National Retail Federation; National Roofing Contractors

Association; National Small Business Association; National

Tooling and Machining Association; National Waste & Recycling

Association; Power & Communication Contractors Association;

Precision Machined Products Association; Precision

Metalforming Association; Real Estate Roundtable; Retail

Industry Leaders Association (RILA).

Small Business & Entrepreneurship Council; TechNet;

Technology & Manufacturing Association; The Association for

Hose and Accessories Distribution; The Community Gyms

Coalition; Tile Roofing Industry Alliance; Transportation

Alliance; TRSA--The Linen, Uniform and Facility Services

Association; Truck Renting and Leasing Association; Wholesale

Florist and Florist Supplier Association; Workplace Policy

Institute; Workplace Solutions Association; U.S. Chamber of

Commerce.

Mr. Speaker, the letter argues that the NLRB's joint employer rule is ``misguided'' and ``will harm millions of workers and small businesses across the country.'' The letter also states the final rule ``will cripple small businesses in numerous sectors by exposing them to frivolous litigation, eliminating jobs, and slowing wage growth across the country, just like it did when a similar standard was implemented in 2015.''

The letter continues: ``At a time of continued economic uncertainty, it is alarming that the NLRB has chosen to move forward on such a divisive and damaging joint employer rule.''

Mr. Speaker, it is clear to me in listening to this debate this morning from speaker after speaker on the other side that they have no experience in the private sector and no idea of how our economy works. Our country has flourished economically because of freedom and the entrepreneurial spirit that exists in this country. They constantly want to squelch both of those principles.

I will point out a key difference in the Republican and Democratic Parties illustrated by the joint employer rule. Listen carefully to the language under debate. The conservative language: direct, immediate. The liberal language: indirect, potential.

Any casual observer of American politics can understand how the blatant attempt to smuggle legal ambiguity into the otherwise clear-cut law will be abused by a weaponized and partisan agency. It will open every American franchisor and franchisee to lawfare from the left if it does not toe the Democratic Party line.

With the spurious pretenses we have seen this administration use to go after Catholic Americans and concerned mothers, we don't need to give it another tool to go after American small businesses.

Therefore, Mr. Speaker, I urge the passage of the resolution, and I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Madam Speaker, I want to answer the question: Can't we all get along?

There is no doubt of Democrats' promotion and support of small businesses. They are in my district. We work every day to make sure they have access to credit and that they are able to pay their workers and benefit from programs like the PPP during COVID.

I don't know how many small businesses stop me to say we were a lifeline, the Democrats who passed the American Rescue Act and many other ways of helping.

Today, we rise to oppose what is not bringing people together; it is dividing people.

H.J. Res. 98 is another extreme attack on workers, and it undercuts the NLRB's ability to address workplace conditions in a fair and equitable manner. As we know, on October 27, 2023, the NLRB published a final rule addressing the standard for determining joint employer status. It is important to highlight the following facts in support of this rule.

The rule is not to be against businesses, small businesses, or workers. It is, in fact, to be able to ensure good quality of work. Employees need to be able to collectively bargain with both joint employers to ensure the parties calling the shots are at the table.

This requirement is particularly important for employees of subcontractors and staffing agencies, such as janitors, housekeepers, cooks, and many others. They work on behalf of a company that directs their work but does not sign their paycheck.

I can assure you this can be a win-win situation, a good quality of life for our employees, great income for our small businesses, and a reasonable response to people's hard work.

Mr. Speaker, I rise to oppose H.J. Res. 98 because I stand for small businesses and for the workers. That is what Democrats do.

Mr. Speaker, I rise today in strong opposition to H.J. Res. 98, a joint resolution to disapprove the National Labor Relations Board's rule relating to a ``Standard for Determining Joint Employer Status''.

H.J. Res. 98 is yet another extreme attack on workers and undercuts the National Labor Relations Board's (NLRB) ability to address workplace conditions in a fair and equitable manner.

As we know, on October 27, 2023, the NLRB published a final rule addressing the Standard for Determining Joint-Employer Status.

It is important to highlight the following facts in support of this final 2023 rule:

The 2023 rule establishes that, under the National Labor Relations Act, two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees, and if the entities share or codetermine one or more of the employees' essential terms and conditions of employment.

This 2023 rule rescinds and replaces the 2020 final rule that was promulgated by the prior Board and which took effect on April 27, 2020.

The 2023 rule more faithfully grounds the joint-employer standard in established common law agency principles.

In particular, the 2023 rule considers the alleged joint employers' authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect.

The common law clearly recognizes that reserved control and indirect control are relevant to the analysis.

And including reserved control is important to account for situations in which an alleged joint employer maintains authority to control essential terms and conditions of employment but has not yet exercised such control.

The reality is that an entity holding such control may step in at any moment to affect essential terms.

Indeed, even when the entity remains on the sidelines, it may cast a shadow over the other employer's decision-making with respect to such terms.

By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold of ``substantial direct and immediate control'' over essential terms of conditions of employment, which has no foundation in common law.

In the 2023 rule, the joint-employer standard is only implicated if an entity employs the workers at issue and has authority to control at least one of these terms or conditions. Authority over other matters is not sufficient.

With passage of H.J. Res. 98, my colleagues across the aisle are now seeking to invalidate this 2023 rule that replaces the Trump-era regulation in the 2020 rule that was purposefully crafted to restrict workers' rights and undermine their legitimate organizing efforts.

Thus, this resolution seeks to invalidate the 2023 rule and quite simply weaken essential labor protections for working people across the economy.

We cannot roll back necessary protections for our American workers.

We must acknowledge the following harms that would result from the passage of H.J. Res. 98, because it would do the following:

Undermine workers and their collective bargaining. This disapproval resolution would prevent workers from comprehensive collective bargaining with all entities that have control over their employment;

Prohibit employer accountability. Employers should not be able to hide behind subcontractors, staffing agencies or temporary placement services when failing to provide fair wages and safe working conditions; and

Backtrack to Trump's regressive joint employer standard. The new 2023 Joint Employer standard is based on common-law agency principles. However, a disapproval resolution will restore the previous version of this standard issued by the Trump Administration.

Yes, H.J. Res. 98 undermines workers and their collective bargaining.

The National Labor Relations Board finalized a new Standard for Determining Joint-Employer Status that established that two or more entities may be considered joint employers if each has an employment relationship with the employees and has influence over the essential terms and conditions of employment.

Once deemed a joint employer, workers would be able to negotiate with all parties that hold influence over their employment.

With this CRA, House Republicans are undermining workers as they collectively bargain for higher wages, better benefits and safer working conditions.

This Republican-led CRA prohibits employer accountability.

Many employers have shielded themselves from accountability by using subcontractors, staffing agencies or temporary agencies. This new Joint Employer standard will ensure that any company with control over employees is responsible for those employees.

Temporary employment increased by almost 63 percent between April 2020

and July 2022, rapidly outpacing the growth of overall employment.

This has serious implications for workers potentially subject to subpar wages, training and work conditions found in staffing agencies when compared to direct-hire counterparts.

If H.J. Res. 98 were to become law, it would revoke the new standard and return to the previous version issued under the Trump Administration which enabled companies to more easily evade a joint- employer status and had no foundation in common law.

We must not allow extreme agendas to sabotage the tireless work of the National Labor Relations Board to safeguard workers' rights and address unfair labor conditions.

Workers have the right to bargain for fair wages and working conditions with every company that directly or indirectly controls their terms and conditions of employment.

Too often, companies deny workers this right by hiding behind subcontractors, staffing agencies, and temporary agencies.

Reversing this rulemaking will prevent workers from exercising their right to bargain for higher wages, better benefits, and safer working conditions.

Simply put, this legislation would mean lower wages for working families. This is beyond unacceptable and must be rejected.

I therefore urge my colleagues to oppose H.J. Res. 98, a joint resolution to disapprove the National Labor Relations Board's rule relating to a ``Standard for Determining Joint Employer Status''.

Madam Speaker, I rise in strong opposition to this resolution.

The National Labor Relations Board, under President Biden, issued a final rule this past October that restores the Board's ability to consider the extent to which an employer controls the terms and conditions of someone's employment. So what does this mean?

Well, the Biden NLRB rule prevents employers from skirting accountability for complying with workplace

laws. Under the Trump administration, their NLRB 2020 rule severely hampered the American worker's ability to hold employers accountable.

I reject the characterization by the chairwoman that the Trump administration rule was pro-freedom. There is nothing pro-freedom about the Trump administration rule, except for the freedom to steal wages, to exact unfair labor practices, and other violations. That is a perversion of the word ``freedom''.

A trend called fissured work has become commonplace. What does fissured work mean? Fissured work is when a company adopts a dynamic of contracting and subcontracting. Instead of hiring the workers directly, they subcontract it out. That is how they avoid responsibility for being fair to the workers.

A prime example of this is temping. Today, roughly 3.1 million Americans are employed by a temping agency. These temporary work arrangements are characterized by their short duration, and employment can range from just a handful of days to months.

So let's say a company needs to hire a front-desk receptionist and enlists the help of a staffing agency. For an individual seeking a job opportunity who may not be able to secure full-time, long-term employment, maybe as quickly as he or she would like, a temporary staffing agency may seem very enticing.

If hired, the receptionist sent out by this staffing agency would essentially be performing work on behalf of a client company that directs the employee's work but does not receive a check signed by that client company, but, rather, the staffing agency writes the check.

This common practice is one for companies to pay employees less for work than a traditional, full-time employee would receive. In addition, many times these employees have hostile or unsafe workplaces.

Now, these fissured work arrangements at temp agencies often result in a lack of clarity regarding employer responsibilities and may become challenging for workers who are interested in organizing a union to negotiate collectively or hold employers accountable for labor standards.

For that receptionist who wants to negotiate his or her pay, the conversation with the company proves difficult to have. Who do you negotiate with: the temp agency or the company?

Fissured work is unfortunately rampant, and it is critical companies are not able to evade bargaining and responsibility of workers. This is the problem that the Biden NLRB joint employer rule seeks to fix.

If a company maintains its right to control how much a worker earns and how many hours they work a week and whether they can organize, then it also must maintain its responsibility for complying with the laws that protect workers. This is common sense. This rule helps workers and protects small businesses that follow the rules.

This rule would upend the dynamic of allowing big companies to shield themselves from labor negotiations. Companies that engage in fissured employee arrangements would no longer be able to evade such responsibilities.

All companies should be held accountable irrespective of how many workers or geographically where employers are stationed.

The final rule is expected to take effect February 2024.

Madam Speaker, I wish that my Republican colleagues were more focused on helping and empowering workers.

I urge opposition to the joint resolution.

Madam Speaker, I rise today in support of my resolution, H.J. Res. 98, to provide for congressional disapproval of the NLRB's recent joint employer rule.

I first thank the esteemed Member from North Carolina, Chairwoman Foxx, and her staff for working with me and my staff to get this joint resolution to the floor and, hopefully, through to the Senate.

I have been here for about a year, and it is readily apparent to me that too many people in this town are making rules that they will never live by in an area where they have never had to survive in the business world. Additionally, too many of my colleagues seem to be convinced that small business is the enemy and Big Government is here to save them.

Plainly put, this joint employer rule is part of the Biden administration's antifreedom, antigrowth, and antibusiness agenda that is gutting the American Dream.

Madam Speaker, the American people don't want Washington telling them how to start or manage a business in this country.

Don't take it from me. Franchise owners in my district have conveyed to me that they are choosing retirement over dealing with this harmful policy. They want the chance to create a better life for their families and their employees' families and not be controlled by out-of-control bureaucrats at the NLRB.

We already have the right to collectively bargain in this country, but this rule goes too far. This is the most glaring evidence yet that capitalism and choice are threats to this administration's socialist America last agenda.

When this regulation was enacted under the Obama administration, it cost franchise businesses $33.3 billion per year. According to the International Franchise Association, around 26 percent of franchises are owned by people of color compared with 17 percent of independent businesses generally.

Madam Speaker, I fear this harmful rule will lead to job losses, increases in the cost of living, and for Americans already suffering, fewer American Dreams being realized, as well.

It burns me up when I hear politicians talk about creating jobs. Politicians can't create jobs, but they sure can kill them. That is what this regulation does.

Bureaucrats don't create jobs; businesses create jobs. Republicans aim to make policy that will not only result in more jobs but more job creators.

These job creators, these entrepreneurs, these franchisees, and these independent contractors create good-paying jobs and give people opportunities to succeed. Overturning this joint employer rule is just the first step in the right direction.

I am the walking result of the American Dream. My father started our family business with one truck, one trailer, and no excuses. He worked 25 hours a day and 8 days a week with my mother by his side. When he handed that business down, my brother and I, with a wonderful team and the grace of God, were helped to grow it to higher heights. We put more effort into it, and that is the story of how this Nation grows and becomes more successful. Nonetheless, we can't allow this story to end.

Madam Speaker, I implore my colleagues to remember that small business on Main Street in their districts when they cast their vote today because the small business on Main Street will certainly remember them in November.

For these reasons and more, Madam Speaker, I urge a ``yes'' vote on H.J. Res. 98.