Joint employer legislation unlikely to pass Senate

A congressional bill would make “immediate and direct control” the standard in determining joint employer relationships.

But observers give H.R. 3441, the Save Local Business Act, which passed the U.S. House of Representatives on a 242-181 vote in November 2017 and is now awaiting U.S. Senate action, little chance of becoming law.

The bill would essentially do the same as the rule proposed by the National Labor Relations Board in September in restoring the previous joint employment relationship standard.

If it were law rather than an agency rule, it would be more difficult to change, said Richard D. Glovsky, a Boston-based partner at Locke Lord LLP who co-chairs the firm’s labor and employment practice group.

However, administrative rule-making is “not dependent on midterm elections and politics within the Beltway,” said Steven M. Bernstein, a Tampa, Florida-based partner with Fisher & Phillips LLP and labor lawyer who represents employers.

Some observers do not in any case give the legislation much chance of becoming law.

“Generally speaking, Congress in recent years hasn’t been quick” to pass significant legislation, said David J. Przybylski, an Indianapolis-based partner with Barnes & Thornburg LLP’s labor and employment department. “It’s much easier” for an agency to promulgate a rule.”

“There’s other big-ticket items on the congressional agenda that are going to get more priority than this,” he said.

And if the Democrats control Congress after the November elections, “I don’t think there would be any chance of getting it enacted. In fact, you would see something just the opposite come out of the House and Senate,” Mr. Glovsky said.