Shopping Centers Today is the news magazine of the International Council of Shopping Centers (ICSC)
Issue link: https://sct.epubxp.com/i/654213
senior vice president of global public policy. "It threatens shopping center owners, service providers and retailers that may lose their ability to operate as independent entities as a result." For roughly 30 years, the Labor Relations Board defined employers as those who directly hired, fired and set the wages and schedules of employ- ees. The NLRB's 2015 ruling changed this definition to allow companies to be considered joint employers if they have the "potential for control" — a distinction that many consider ambig- uous and potentially damaging to local companies who work under contract with larger organizations. Landlords and other employers use contractors to provide such ser- vices as landscaping, janitorial, of- fice, technology and food every day, and the question of what constitutes direct versus indirect control is key. "If a shopping mall directs an outside cleaning service to have its employees come to work at 10 p.m., after the mall closes at 9 p.m., such a basic di- rection may be found by regulators as indirect control of employment terms — in this case, working hours," said Michael Layman, executive director of the Coalition to Save Local Busi- nesses. "Thus, the shopping mall may be forced to collectively bargain with the cleaning service's employees — employees the shopping mall didn't hire and has no control over." Critics charge that these actions may jeopardize many of the founda- tional contractual relationships upon which the shopping center industry relies, and the consequences could be far-reaching. Shopping centers and other companies may simply decide to bring previously outsourced services in-house for the sake of greater con- trol and lesser liability — which may mean, in turn, the end of thousands of smaller companies that provide these services. "The upshot is [that] big com- panies get bigger, and small businesses lose their livelihoods," Layman said. "Employees will experience less work- place flexibility, because they may no longer be managed by small-business owners in their hometown but rather by corporate management in a faraway headquarters." Labor unions and the National Em- ployment Law Project support the new definition. The Labor Department's release "provides a timely reminder to companies that while they are free to insert intermediaries or subcontrac- tors into their business models, they cannot outsource their responsibility for the workers in their businesses," said Christine Owens, executive direc- tor of the National Employment Law Project, in a news release. Legislation to reverse the Labor Relations Board standard has been introduced in both houses of Con- gress — the Protecting Local Business Opportunity Act, introduced by Rep. John Kline, R-Minn., and Sen. Lamar Alexander, R-Tenn. "The NLRB's new joint-employer standard would make big businesses bigger and the middle class smaller by discouraging companies from fran- chising and contracting work to small businesses," the lawmakers said in a joint statement. "The board's effort to redefine the idea of what it means to be an employer will wreak havoc on families and small businesses across the country." The issue will potentially have the greatest impact on business owners without labor unions, according to Layman. "'Joint employer' primarily threatens employers who do not have labor unions," he said. "So if you are a business owner with no collective bargaining experience and think labor laws don't affect you right now, you are precisely the target that regulators are eyeing for their joint-employer claims." Laird concurs. "Under the current administration, both the NLRB and Department of Labor appear embold- ened to rewrite labor policy with a pro-union slant, which businesses will have to scramble to get up to speed on," Laird said. "While Congress may be able to push back with legislation, ultimately, those measures will be sub- ject to the veto power wielded by the president. I will venture to say that many of our members will find labor policy challenging in the months and years ahead." SCT a p r i l 2 0 1 6 / S C T 57 "The board's effort to redefine the idea of what it means to be an employer will wreak havoc on families and small businesses across the country." A u g . 2 7 , 2 0 1 5 • N l r B i s s u e s t h e d e c i s i o N i N c a s e o f B r o w N i N g - f e r r i s i N d u s t r i e s , r e d e f i N i N g t h e s t a N d a r d f o r d e t e r m i N i N g j o i N t - e m p l o y e r s t a t u s . S e p t . 9 , 2 0 1 5 • h . r . 3 4 5 9 – t h e " p r o t e c t i N g l o c a l B u s i N e s s o p p o r t u N i t y a c t " i s i N t r o d u c e d i N t h e h o u s e o f r e p r e s e N t a t i v e s . S e p t . 9 , 2 0 1 5 • 2 0 1 5 – t h e " p r o t e c t i N g l o c a l B u s i N e s s o p p o r t u N i t y a c t " i s i N t r o d u c e d i N t h e s e N a t e . J A n . 2 0 , 2 0 1 6 • t h e u . s . d e p a r t m e N t o f l a B o r ' s w a g e - a N d - h o u r d i v i s i o N i s s u e s N e w g u i d a N c e f o r d e t e r m i N i N g j o i N t - e m p l o y e r s t a t u s .