Editorial November 10, 2017

TheWeekinCongress.com

Editorial

From the Left

H.R. 3441 – Save Local Business Act (Rep. Byrne – Education and the Workforce) (One Hour of Debate).  This legislation seeks to weaken employee protections by amending the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) to redefine a “joint employer” as someone who “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment.”  Essential terms are defined as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules and tasks, and administering employee discipline.  Currently, a “joint employer” is defined based on a 2015 NLRB decision in Browning Ferris Industries as a situation in which more than one employer controls or has the right to control the terms and conditions of employment either “directly or indirectly.” This returned the joint employer standard to one that was in effect prior to 1984, when it was narrowed by a Reagan-era Board. Under the FLSA, courts examine whether a joint employer relationship exists by assessing the “economic realities” of the employment relationship, a standard far broader than under the NLRA.

Current joint employer standards take into account modern hiring trends and standards that have become common practice, such as the use of subcontractors, intermediaries, and temporary staffing agencies, in order to ensure employee protections regardless of how that employee is hired or managed.  According to the Bureau of Labor Statistics, approximately three million Americans are employed by a temporary staffing agency on any given day, performing work on behalf of a client company that directs the employee’s work but does not directly pay the employee.  This legislation would severely inhibit the ability of those three million Americans to receive fair treatment by their employer.

Proponents claim that this legislation will restore the definition of “joint employer” used by the NLRB before 2015.  However, as written, this legislation would roll back protections further than the Browning Ferris standard and radically narrow the FLSA’s broad joint employment standard for the first time, undermining workers’ ability to secure recourse for wage theft.  Businesses claim that (1) the current standard, which holds employers liable for indirect control of a subcontractor’s employees, creates uncertainty and could make them responsible for employees they don’t directly control, even though they set those terms by contract, and (2) this legislation will help protect the independence of businesses.  But this legislation actually hurts franchisees in that it would hold them responsible for decisions directed by their franchisors. It is clear that this legislation is being used to allow employers who jointly determine working conditions to evade responsibility and avoid liability, while weakening employee protections for wage theft, child labor, and equal pay violations.

This bill, like other bills being considered under this Republican Congress, does not set clear standards.  As written, the Save Local Businesses Act is unclear as to how many of the several essential terms and conditions listed in the legislation a party would need to control in order to be deemed an employer.  This ambiguity could lead to a scenario where no employer is deemed liable under the FLSA or the NLRA, which leaves workers without any recourse for workplace misconduct. Minority Whip.

H.R. 3043 designates the Federal Energy Regulatory Commission (FERC) as the lead agency to coordinate the licensing process.  Under this legislation, FERC is granted new authority to set deadlines for decisions by federal agencies, states, and tribes administering other applicable laws and limit deadline extensions to a ninety day period, regardless of the complexities of the license being evaluated. This gives FERC undue influence over the ability of states and tribes to obtain information via studies required to issue water quality certifications under the Clean Water Act.  Both of these provisions allow FERC to overreach and conflict with states’ rights to manage water quality and quantity.  This bill also would grant FERC significant power in that it requires hearings that address issues related to mandatory conditions imposed by federal agencies to be conducted by a single FERC Administrative Law Judge (ALJ) rather than ALJs at the resource agency with the requisite legal expertise to render decisions on conditions open to challenge.

Although this bill supposedly improves and streamlines the hydro licensing process, in reality it opens the door for protracted litigation due to the language allowing license applicants and other stakeholders multiple new opportunities to challenge a mandatory resource protection condition or prescription by a resource agency, such as the National Oceanic and Atmospheric Administration (NOAA), Environmental Protection Agency (EPA), and others.

Hamilton on Congress

If You Want To Change Things… 

By Lee H. Hamilton

Hamilton

Hamilton

One of the gifts of living in a representative democracy is that voting is only one of the rights it confers. For ordinary people who want to make change – who in some way want to alter their neighborhood or town or state or even the nation – the promise exists that by dint of their own efforts they can do so. This is a precious gift.

But it is not an easy one to enjoy. Even in a democracy, bringing about significant change requires hard work – a level of intensity and commitment beyond the ordinary responsibilities of citizenship. You need a workable, achievable remedy that will correct the problem you’re worried about. You need patience and perseverance, and a specific set of skills and capabilities.

To begin with, you can’t make change alone. You’ll require the help of others. So you have to be able to listen carefully to people – and then identify the interest groups and individuals who can help you achieve what you want.

This means you also need to be able to look around you and understand the political lay of the land. How intensely will this or that individual or group support you? Will they actually help, or just pay lip service? What are they willing to do – and, just as important, not willing to do?

What about the lobbyists, the mayor’s or governor’s office – or the White House? What kind of reception can you expect from the media? And what will it take to get your allies to work in a coherent, coordinated way?

You also have to take responsibility for being the expert on your proposal. You’ll need to understand its weaknesses and strengths, its potential impact, and the arguments both for and against it. There’s nothing quite so challenging as appearing before a city council or congressional committee and answering questions from politicians who have their own agendas as they grill you.

You have to know what you’re talking about, and be willing constantly to update yourself on the facts. Facts drive the public dialogue, and you want always to be on the lookout for the most persuasive facts or developments that can support your proposal.

This is because you’ll also need to communicate constantly, whether you’re trying to build support one on one or before a gathering of hundreds. On radio, television, in print, online – it’s impossible to over-communicate.

And though amplifying the reach of your voice has value, so does retail persuading -plain one-on-one conversations that teach you which arguments carry weight and which don’t. Because although you might be starting with like-minded allies, inevitably you’ll need to broaden your coalition to include people who were initially skeptical or saw the issue differently from you.

Which is why you also should always be open to the idea that you could be wrong, that your proposal could be improved and strengthened, that others might have better ideas both on substance and on strategy. Part of the art of building coalitions is being open to proposals that alter or change your proposal. You may have put a lot of work into designing and drafting it, but one of the first things you’ll encounter is someone who’s got an amendment.

No one possesses all the skills needed to persuade, cajole, negotiate, and strategize his or her way to success. Especially when it comes to pushing a cause at the state or national level, it will take money: to communicate, to advertise, to travel. It takes resources to accomplish changes of consequence, which means raising money – and dealing with donors who want a role to play, with all the challenges that brings.

Fortunately, there is no single center of power in this country. It takes a complex effort within a complex system to make change, which is why it’s such a challenge and why many people get discouraged. It’s built into the idea of representative democracy that making change is difficult. But most of us wouldn’t have it any other way. Few things can exceed the satisfaction of helping shape the direction and success of your community or nation.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar, IU School of Global and International Studies; and a Professor of Practice, IU School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.


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