Professor Michael Harper Testifies before House of Representatives Subcommittee
The professor offered his expertise on labor law to the Subcommittee on Health, Employment, Labor, and Pensions.
On September 29, 2015, Barreca Labor Relations Scholar and Professor of Law Michael Harper testified before the House of Representatives Subcommittee on Health, Employment, Labor, and Pensions.
Rep. Phil Roe (R-TN) chaired the hearing, which was called to consider H.R. 3459, “Protecting Local Business Opportunity Act.” The legislation was prompted by a recent decision of the National Labor Relations Board (NLRB), Browning-Ferris Industries (BFI), which expands somewhat the definition of joint employment from the one the NLRB has used since 1984 to determine collective bargaining obligations.
The legislation would direct the NLRB to roll back that expansion. The bill’s authors, Sen. Lamar Alexander (R-TN) and Rep. John Kline (R-MN) contend that the expanded definition of joint employment threatens franchising and other contracting of work to small businesses by encouraging franchisors and other large businesses to exert more control over the employment and labor policy of their franchisees and subcontractors.
In his testimony, Professor Harper argued that the BFI decision is a narrowly crafted reinstatement of the pre-1984 definition of joint employment. The ruling, he notes, is tethered to judicial and NLRB precedents that existed while franchising and subcontracting were growing in popularity as business models.
Ultimately, Harper contended “the proposed legislation currently before your Committee is unnecessary to ensure the continuation of franchising and other efficient segmented business models that are prevalent in our modern economy. The legislation instead only would frustrate the Board’s renewed effort to ensure that businesses like BFI not use such models to evade their statutory obligations to bargain over the wages, hours, and conditions of employment that they at least co-determine.”
Professor Harper is a leading authority in the areas of labor law, employment law, and employment discrimination law. He has co-authored several major casebooks, both in employment discrimination and employment law, and in labor law, and is the author of many law review articles and book chapters on a broad variety of labor and employment law topics. He served as a reporter for the American Law Institute’s recently published Restatement of Employment Law. He was the primary author of provisions in this Restatement that define the boundaries of the employment relationship regulated by federal and state law, including a section on joint employment.
