The Federal Government’s Schizophrenic Definitions Of “Employer”

Nathan Mehrens President of Americans for Limited Government
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An employer is an employer except when we don’t want it called an employer. This is apparently the motto of President Obama’s appointees in two federal agencies that enforce labor and employment law.

The National Labor Relations Board in its recent Columbia University case was asked to decide whether the word “employee” as found in the National Labor Relations Act includes certain students “who perform services at a university in connection with their studies are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act.” The Board in overruling previous case law now says that these individuals are employees. This means that they can be targeted by labor unions for money.

Generally in law an employee is someone who works for an employer.

Juxtapose the NLRB’s decision with what the U.S. Department of Labor has decided that the term “employer “means for the purposes of the Labor-Management Reporting and Disclosure Act. In its recent “persuader” regulation the Labor Department stated that the term “employer” does not include labor unions in the context of a union organizing drive, regardless of how many employees they have. The Labor Department’s rule stated:

The Department has previously determined that the term “employer” in section 203(a)(1) does not include a “labor organization,” and this rule [the persuader regulation] confirms this understanding with respect to the other subsections of 203.”

The Department then tossed in some nonsense text to explain that regardless of what the statute says, that definition doesn’t need to be followed because unions have other reporting obligations under the Act.

This, despite the explicit definition from Congress that for the purposes of the act in question  the definition of employer:

means any employer or any group or association of employers engaged in an industry affecting commerce (1) which is, with respect to employees engaged in an industry affecting commerce, an employer within the meaning of any law of the United States relating to the employment of any employees …”

Fortunately, this regulation is currently under injunction, but litigation is still ongoing.

The Labor Department had to completely ignore a clear definition of the word “employer” in order to achieve its desired result. The NLRB in its decision has expanded the definition of the word “employee” to achieve its desired result.

In the NLRB decision the majority, near the start of the opinion, tells us all we need to know regarding the origin of the problem. There the Board stated that its “task of defining the term ‘employee’ is one that ‘has been assigned primarily to the agency created by Congress to administer the Act’.”

Essentially what the Board is saying here is that Congress kicked the issue to us and we get to decide.

In the case of both the NLRB’s decision and that of the Labor Department, the end justifies the means for them. This is how they can come to different decisions on the same concept.

To fix this Congress needs to reclaim its authority not only here but in countless other subject matter areas. If a term in the law needs to be defined then Congress needs to do it and to do so explicitly.

Some accountability to the voters and responsibility to lawmakers needs to be returned. If voters dislike the lawmaking of the NLRB or Labor Department there is little they can do about it in the near term because the Board’s members and the appointees at the Department are unelected. Voters, however, can, and should, hold their Members of Congress accountable in the next election.

Congress is, of course, the branch of the government that should be making laws, not the executive branch and the independent agencies. Also, the agencies need to enforce the law as written and not rewrite them to achieve a desired result. This is the basic civics we all learned growing up, but isn’t being practiced in many instances such as those discussed here.

Nathan Mehrens is President of Americans for Limited Government Foundation and previously served in the U.S. Department of Labor.