Thread by @AFLCIO

#PROAct Thread Continued:

In truth, the PRO Act merely codifies the NLRB’s existing practice, which has been in effect for over six years, to ensure workers have access to convenient and timely information leading up to the election.

Eligibility list privacy concerns are a red herring created by employer groups and corporations who fundamentally oppose the PRO Act.

The NLRB itself and multiple federal courts have acknowledged that the very eligibility list requirements found in the PRO Act do not pose increased privacy concerns.

Indeed, the AFL-CIO has submitted multiple FOIA requests to the NLRB seeking any information the agency has regarding complaints over union use of eligibility lists.

The NLRB’s responses make clear that there have been no cases or complaints concerning misuse of eligibility lists to invade employee privacy since the NLRB’s current eligibility list rule took effect.

The United States Court of Appeals for the Fifth Circuit also rejected the privacy argument when employer groups mounted legal challenges against eligibility list requirements.

It stated that there is “no evidence that disclosure of email address and a cell phone number presents either a greater risk of identity theft or a greater possibility of privacy infringement than a home address.”

Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 F.3d 215, 225-26 (5th Cir. 2016). The U.S. District Court for the District of Columbia made the same finding. Chamber of Commerce v. NLRB, 118 F. Supp. 3d 171, 213 (D.D.C. 2015).

In today’s economy, many businesses increasingly seek to create an arms-length relationship between themselves and the workers who keep their operations running.

At the same time, these businesses retain the contractual right to control the terms and conditions of these workers’ jobs. This trend is often called the “fissured workplace.” Businesses do this to cut costs and evade the responsibility under federal labor and employment laws.

These business structures, like staffing firms, temp agencies, and subcontractors, often leave employees unable to raise concerns, or negotiate with, the entity that actually controls the workplace.

In such arrangements, it can be confusing or unclear who has control over a worker’s terms of employment.

For example, if employees of a subcontractor were to organize a union and request to bargain, the subcontractor could simply refuse to bargain over certain issues because its contract with the prime contractor governs those aspects of the work (e.g., pay, hours, safety, etc.).

This can be harmful to workers because the people who are actually able to dictate workers’ terms and conditions of employment are not at the bargaining table.

The way to ensure that workers can actually negotiate with the entity who controls the work is to readily identify the entities as “joint employers.”

That is, because the two entities share or co-determine the details of the work, they should both be required to bargain over the parts that they control.

When companies are considered joint employers, they have an obligation to bargain with employees over working conditions that they control.

But the current NLRB standard for finding a joint employment relationship is unrealistic and narrow in that it requires evidence of actual exercised control rather than the contractual power to control working conditions.

The power to control working conditions is what should determine bargaining responsibilities, not whether you’ve used it.

Critics of the PRO Act have claimed that changes to the joint employer standard would outright end the business franchise model and would dramatically change liability rules.

This is, again, simply untrue and a further attempt to leave workers with no opportunity to bargain with the controlling entity.

The PRO Act would restore and codify the more realistic Browning-Ferris joint employer standard that was announced during the Obama administration, allowing a company’s indirect or reserved control over working conditions to be sufficient for finding joint employer status.

The reason is simple - workers’ right to collectively bargain cannot be realized if the entity that has the power to change workers’ terms and conditions of employment is not at the bargaining table.

It is important to underscore that, as always, it would still be up to employees whether they want to organize a union and bargain with their employer or employers.

Now is the time to pass the PRO Act

Workers across the country understand that the scales are tipped against them and that a full-time job no longer guarantees a stable income, dignity in the workplace, or the ability to support a family.