Anti-worker lawmakers are quietly advancing House Joint Resolution 98 through Congress, a bill that would harm working people across the economy by undercutting workers’ ability to come together in unions. The Biden administration has announced that the president will veto the bill, which would invalidate new rules adopted by appointees to the National Labor Relations Board (NLRB): “Reversing this rulemaking will prevent workers from exercising their right to bargain for higher wages, better benefits, and safer working conditions.” Moreover, the legislation demonstrates a growing divide between the economic values of everyday Americans and policymakers in Congress who say they support the working class but advance policies designed to weaken workers’ power in the economy and allow corporations to break the law without accountability.
House Joint Resolution 98
Americans’ support for unions is the highest it has been in decades. More than two-thirds say that they support unions, and the partisan divides on unions among younger generations are narrowing. In addition, a majority of Americans support broad policies to fix U.S. labor law so that workers who want to form a union are free to do so, and a bipartisan plurality supports the strengthening of rules to prevent companies from evading coverage under labor laws by outsourcing their workers.
Yet Republican leaders in Congress are advancing legislation that would undermine Biden administration policies designed to strengthen organizing rights and raise wages for workers across a variety of sectors.
On January 12, 2024, House lawmakers passed House Joint Resolution 98 to rescind new “joint employer” regulations that empower franchise and outsourced workers to exercise their labor rights. Federal labor law recognizes that the company that signs a worker’s paycheck may not be the only company that controls workplace conditions. It protects workers in these situations by including joint employer standards to help ensure that companies that share control are jointly liable for violations of the law.
Joint employer standards for union workers under the Biden and Trump administrations
President Joe Biden’s appointees to the NLRB adopted rules to uphold requirements that corporations bargain with unionized workers over the work conditions that they have the authority to control, as well as to hold accountable entities that violate the right of workers to come together in unions or speak up against unfair work conditions. These rules address only the employment tests under the National Labor Relations Act. Federal laws governing minimum wage, workplace safety, anti-discrimination, family and medical leave, and protections for migrant workers include their own employment definitions that help ensure that companies that share control over workplace conditions are jointly liable for violations.
The new rules would strengthen protections that were hollowed out during the Trump administration. In 2020, former President Donald Trump’s NLRB appointees adopted rules that made it easier for large corporations to escape liability for labor violations and avoid bargaining obligations by relying on smaller companies—such as franchisees, temporary staffing agencies, and labor contractors—to supply their labor force.
While many corporations do not outsource workers with the aim of violating workplace laws, some corporations may try to relinquish the official title of employer but not the power to control their labor suppliers’ business decisions or workplace conditions.
House Joint Resolution 98 would prevent workers from holding large corporations with the power to change workplace practices accountable for labor law violations. Strong joint employer standards are important in working-class jobs that are at risk of outsourcing, such as restaurant and hotel workers, janitorial positions and security officers, home care workers, farm laborers, coal miners, and construction and warehouse workers. And while industry associations, such as the International Franchise Association, claim that strong joint employment standards are a job killer, during the Obama administration, franchise employment outpaced private sector job growth. This was also the last time strong joint employer protections were in place.
Undermining strong prevailing wage rules
This is not the first attack seen this congressional session on administration regulations to raise standards for workers. House lawmakers introduced House Joint Resolution 103 last fall, which would void new Biden administration rules that help guarantee fair market wages and benefits for the 1.2 million workers employed annually on government-funded construction projects. Last summer, the U.S. Department of Labor modernized the rules that govern wage standards established under the Davis-Bacon and Related Acts (DBRA). The 90-year-old law requires federal contractors to pay workers market or “prevailing” wages and benefits, which helps prevent low-road contractors from driving down local area labor standards. Previous administrations had chipped away at the regulatory system responsible for administering the DBRA, resulting in lower wages for construction workers and unpoliced wage theft.
Research shows that strong construction wage protections allow workers to earn middle-class incomes, expand access to health insurance and pension plans, increase home ownership rates, and help close wage gaps between Black and white construction workers. Moreover, prevailing wage laws allow law-abiding contractors to compete on an even playing field and ensure the public receives good value for its investments by retaining well-qualified workforces, encouraging companies to bid on projects, and preventing low-road companies from relying on public assistance to subsidize poverty wages.
The effort to rescind the rulemaking was out of step with everyday Americans, who broadly support policies to raise pay for working people. A majority of respondents to a 2023 Data for Progress poll, across political affiliations, supported attaching prevailing wage standards to new government programs to ensure that companies receiving federal support pay market wages and benefits. While House Joint Resolution 98, which would rescind the NLRB’s new joint employer protection, is awaiting Senate action, the House has not advanced House Joint Resolution 103 to undermine the new prevailing wage rules.
The Congressional Review Act provides a pathway to rescind agency rulemakings
Enactment of the legislation relies on little-known authorities granted by the Congressional Review Act (CRA) of 1996, which provides Congress the authority to rescind agency rulemakings on a fast track and prevent similar future rulemaking by a simple majority vote that cannot be filibustered in the Senate, as long as the vote occurs within the first 60 continuous session days following rule publication. Only one Democratic lawmaker, West Virginia Sen. Joe Manchin, sponsored legislation to disapprove of the NLRB’s new joint employer standards. Yet several Democratic members of the House joined with a unanimous Republican caucus to advance House Joint Resolution 98 to the Senate.
Although the resolution has virtually no chance of being signed into law by President Biden, it sends a clear message about the priorities of anti-worker lawmakers and is part of a broader effort to use the CRA to undermine essential worker protections. As discussed above, lawmakers have introduced legislation to void new protections that help guarantee construction workers on federally supported sites market wages and benefits. Also, Sen. Bill Cassidy (R-LA) has announced that he will advance a resolution undermining independent contractor protections, which help ensure compliance with bedrock minimum wage and overtime standards across the economy. The proposals to undo the strong, pro-worker rules have it backward. They take power and pay away from working Americans to reward corporate interest groups—exactly the opposite of what is needed at a time when corporate profits are at near-record highs while workers’ share of the wealth they help create has declined over decades.
The bills discussed above show the true anti-worker nature of the sponsoring lawmakers. Some of the bills’ supporters like to claim they support the working class, but their actions speak far louder, demonstrating whose side they are really on. Working people deserve better. The Biden administration should stand up to these attempts to dismantle important protections.