Audit, Compliance and Risk Blog

Most employers promulgate a wide range of employee-related policies and work rules, which some compile in employment manuals. All too frequently, these policies and work rules contain ambiguities that employees try to parse to understand what rules really apply, and why. What if employees interpret – or might reasonably interpret – an ambiguity in a way that appears to restrict employees’ rights to organize themselves? Do these provisions violate the National Labor Relations Act (NLRA)?

On June 22, 2016 President Obama signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” revising the Toxic Substances Control Act (TSCA) TSCA extensively. I’ve written about the major programmatic changes here, here, and here. In addition to those Big Picture changes however, the 2016 Amendments provide a number of targeted revisions.

Does your employer’s Hazard Communication program pay attention to cleaning agents used in the workplace – bleaches, disinfectants, glass cleaners, etc? If it does more than mention their existence and note that they’re probably corrosive and maybe toxic, you’re almost certainly in the minority. In most workplaces, workers who use cleaners are exposed to undisclosed or unexplained chemical hazards. And even if your organization’s employees do receive this information, does your employer contract out janitorial and other service work without ensuring that those night janitors are fully trained and protected?

If someone receives occupational direction and/or compensation from more than one entity, then who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” The answer has important implications, not just for who writes a paycheck but for who is subject to legal requirements and prohibitions under federal, state and local laws. The National Labor Relations Board (NLRB) upended established definitions in 2015, in a decision that Browning-Ferris Industries of California (BFI) was a joint employer with the company (Leadpoint Business Services) that provided employees who worked at one of BFI’s sanitary landfills, since BFI reserved the right to intervene in a variety of labor decisions. By a party-line 3:2 vote (with Democrats in the majority) NLRB “restated” agency and judicial precedent and found that the two companies were indeed joint employers, which realigned the employees’ access to collective bargaining (NLRB’s area of jurisdiction). The other two members dissented vociferously, for a variety of reasons.

After the BFI decision, employer groups and many Republican legislators argued that the correct standard was actual control not potential control, and that the majority was abandoning the common law approaches it claimed to follow. Early in December 2017, the U.S. House of Representatives passed legislation to write a definition of “joint employer” into the National Labor Relations Act (NLRA), in order to reverse this expansive interpretation (HR 3441, the “Save Local Business Act”). However, on December 14 the NLRB – now with a 3:2 Republican majority after President Trump filled two intervening vacancies – voted on a party line vote to rescind the BFI case analysis and return to an actual control test. The new decision is in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers. The remainder of this note discusses the issue and this decision, which probably resolves the issue … until the next election that changes the balance of power again.

Who Can Be a “Joint Employer” Under the NLRA? 

The NLRA does not presently include a statutory definition of “joint employer” (or even “employer”, for that matter, other than to clarify that “any person acting as an agent of an employer” is also considered an employer (29 USC § 152(2))). In the absence of a statutory definition, NLRB and courts look to other labor laws and the “common law” when considering whether an employer-employee relationship exists. This case-specific review allows flexibility to adapt policies to changing workplace realities, but also means that guidance can be unclear and tends to vary with the opinions of a majority of the five NLRB Board members.

Highly-publicized revelations about extensive workplace harassment have cost many alleged harassers their high-powered positions (including US Senator Al Franken), and are producing a variety of proposals to toughen standards. One of the first new provisions was enacted by the U.S. Senate on November 9. The Senate Anti-Harassment Training Resolution of 2017 (S.Res. 330) will require anti-harassment training in Senate offices. The Resolution applies to internal governance of the Senate, so does not apply to any other body, such as the House of Representatives (where House Resolution 630, requiring annual training by each member, officer and employee in employee rights, including anti-harassment and anti-discrimination, was passed on November 29 but is being reconsidered).

As the Attorney General of Oklahoma, Scott Pruitt made his national reputation suing the Environmental Protection Agency (EPA) to reverse or delay the agency’s attempts to expand environmental controls and the scope of its authority. Now that he’s EPA Administrator, Pruitt is moving to ensure that his agency doesn’t make use of the second major type of agency-defendant litigation, in which an agency is sued and then settles on terms favorable to the plaintiff’s goals. In a Directive and Memorandum issued October 16, Pruitt argues that this “sue and settle” litigation represents collusion between agencies and advocates, bypassing normal legislative and administrative processes and allowing agencies to redirect their efforts through “regulation by litigation.” And because litigation settlements typically involve only the active parties and the judge, these approaches tend to freeze out others – states, groups, and individuals – who lose the opportunities to participate that they’d be provided by normal legislative and regulatory proceedings.

Although many agencies and officials in the Trump administration downplay or deny human contributions to climate change, a major new government report accepts that proposition, and documents its extent. On November 5, the U.S. Global Change Research Program published its Climate Science Special Report, which will serve as Volume 1 of the U.S. Fourth National Climate Assessment (NCA4). The Program is a group of 13 federal agencies with relevant authority and expertise, with the development of the NCA4 overseen by the National Oceanic and Atmospheric Administration (NOAA). The Program was established by the Global Change Research Act (GCRA) of 1990, to “assist the Nation and the world to understand, assess, predict, and respond to human-induced and natural processes of global change.” As summarized in the Executive Summary to the Report:

In March 2017, President Trump issued an executive order (EO) “Promoting Energy Independence and Economic Growth,” which packaged a set of repeals and re-directions to move US federal policies firmly away from climate change and toward domestic fossil fuels. (I wrote about it here). Among its many provisions, the EO directs federal agencies, including the Environmental Protection Agency (EPA), to “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, “agency actions”) that potentially burden the development or use of domestically produced energy resources…” The EO also orders EPA to review several specific rules.

As I’ve discussed in recent blogs, President Trump’s executive agencies, including the Environmental Protection Agency (EPA), are dramatically reducing federal attention to “climate change.” Obama-era initiatives are being terminated or reversed, and planning and communication are being reduced or eliminated. (For example, I noted in my recent discussion of EPA’s draft Strategic Plan, here, that the draft does not mention the phrases “climate change” or “greenhouse gas” even once).

Although Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), important hazards remain unregulated. Many await definitive scientific conclusions, but others need testing and control methodologies that would allow requirements to be designed and administered, sufficient regulator and regulated entity resources, and/or high enough political priorities. Until recently, one of these unregulated pathogens has been the legionella bacterium, first identified in 1976 as the cause of “Legionnaire’s disease,” which appears as a form of pneumonia.