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Alexander presses DOL witness on OSHA joint employer memo, gets clear answer

September 25th, 2015  |  Pamela Wolf

Senate HELP Committee Chairman Lamar Alexander (R-Tenn.) grilled a DOL witness at a Senate subcommittee hearing about why OSHA investigators are being instructed to ask questions to determine whether a franchisee and franchisor are joint employers instead of focusing on health and safety. The clear answer he got underscored the fact that someone must be held accountable for worker health and safety.

At a September 23 hearing held by the Senate Homeland Security and Government Affairs Subcommittee on Regulatory Affairs and Federal Management, Alexander decried what he called the NLRB’s overturning of three decades of labor policies to create a new standard for a “joint employer” that says merely “indirect control” or even the potential to control working conditions will now make two separate employers joint employers. He was talking about the Board’s controversial decision last month in Browning Ferris Industries of California, Inc. dba BFI Newby Island Recyclery, which loosened the joint employer standard.

Leaked memo. Alexander pointed out that the day before the NLRB issued its Browning Ferris decision, Politico reported that OSHA officials were asking regional directors to use the same new standard for joint employment when looking at violations at franchises. “It looks like a coordinated effort to change the law to me,” Alexander said.

The Senator was referring to a memo internally circulated at OSHA, which pondered whether “for purposes of the OSH Act, a joint employment relationship can be found between the franchisor (corporate entity) and the franchisee so that both entities are liable as employers under the OSH Act.”

“If you’re going to change the OSHA law, which goes back to 1970, to say that instead of looking at health and safety, you suddenly want to have your investigators looking at a test for whether a franchisee and a franchisor are joint employers, don’t you think that ought to be a change in the law that Congress makes or at least a rule or a regulation?”

Alexander queried, “Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not? Why does OSHA care about that? Why isn’t OSHA interested in health and safety?”

Who’s responsible? Mary Beth Maxwell, Principal Deputy Assistant Secretary and head of the Office of the Assistant Secretary for Policy at the DOL, gave a clear answer—investigators need to know who’s responsible. She also noted that there is more than a decade of case law under the OSH Act that has recognized the concept of applicable joint employment. She also explained that investigators must look at all different types of work arrangements, and there are elements of joint employment may be implicated.

As to the memo Alexander referenced, Maxwell said it was not guidance and it was just a draft. Rather it included a draft list of questions that teaches investigators what they should be asking about.

When pressed by Alexander as to why OSHA, which deals with health and safety, should be asking such questions, Maxwell said that while the focus is on health and safety, investigators need to better understand who is responsible for the health and safety of the workers.