Senate Passes Joint Employers Resolution, Sending it to the President

This marks the second time this year that Congress voted to strike down the National Labor Relations Board’s joint employer rule.

The National Labor Relations Board’s joint employer final rule received yet another round of disapproval as the U.S. Senate voted 50-48 Wednesday to strike it down by way of a Congressional Review Act joint resolution.

The effort, notably, was bipartisan. Sen. Bill Cassidy, R-La., ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, led the charge. Sens. Joe Manchin, D-W.Va., Kyrsten Sinema, I-Ariz., and Angus King, I-Maine, joined Republicans in rejecting the rule.

Prior to the Senate’s vote, the House did the same in January. The resolution faces a likely veto by President Joe Biden.

The NLRB seeks to establish criteria to determine whether, under the National Labor Relations Act, an employee is jointly employed by two or more entities. Namely, the Board’s final rule states that joint employers possess authority to control the essential job terms and conditions of employment, regardless of whether this control is exercised or whether any such control is “direct” or “indirect.”

The final rule, which has been vacated by a federal judge, describes seven categories of essential job terms and conditions of employment. These include:

• Wages, benefits and other compensation.

• Hours of work and scheduling.

• Assignment of duties to be performed.

• Supervision of the performance of duties.

• Work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline.

• Tenure of employment, including hiring and discharge.

• Working conditions related to the safety and health of employees.

The long journey to revisit the joint employer rule: the NLRB announced it was looking at a rules update back in December 2021. Even after publication of the final rule, a federal district court twice delayed its effective date: once from December 2023 to the following February, then to March.

Two days before the rule was set to take effect, the Texas judge overseeing the case vacated the joint employer rule entirely. Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas called the NLRB’s standard “contrary to law,” as well as “arbitrary and capricious.”

At the time, the U.S. Chamber of Commerce issued a statement calling Barker’s decision “a major legal victory for American businesses of all sizes.” The organization had been among the litigants that sued to stop the rule.

Suzanne P. Clark, the Chamber’s president and CEO, said in the statement that the decision was a win for those who don’t want to be “micromanaged” by the NLRB and said the organization would “continue to fight back” against the Board.

In turn, NLRB Chairman Lauren McFerran acknowledged in a press release that the last-second decision was “a disappointing setback.”

The final rule is not expected to go down without a fight. NLRB appears committed to a broader interpretation of the NLRA’s joint employer regulations, attorneys previously told HR Dive — although, for now, employers continue to be in a “holding pattern.” Following the Senate’s move on Wednesday, that still rings true today.

Last month, members and staff of the South Carolina Restaurant & Lodging Association traveled to Washington, D.C. to meet with our entire federal congressional delegation and educate our elected officials on critical policy issues impacting the restaurant industry. Every year, the National Restaurant Association hosts Public Affairs Conference, bringing together employees of the restaurant industry, 50 State Restaurant Associations plus Puerto Rico and the Virgin Islands, independent and large-scale operators, and other various stakeholder groups alike to Capitol Hill to advocate on behalf of the nation’s most diverse industry and second-largest private employment sector – restaurants. The discussions with lawmakers focused on credit card swipe fees, opposing the FTC’s surcharge ban, and preserving well-established industry tipping practices that support South Carolina’s hospitality industry.

This year was the largest Public Affairs Conference yet, with over 570 in attendance, with over 215 meetings held with House and Senate offices. The Conference kicked off on Monday night with a Welcome to Washington reception for attendees at the National Restaurant Association’s D.C. headquarters. Tuesday was packed with relevant and insightful conference programming, filled with keynote speakers, fireside chats, and policy briefings. Notable speakers included Dana Perino, former White House Press Secretary under the George W. Bush Administration, Journalist and current Co-Host of FOX’s ‘The Five’, former Five-Term U.S. Representative, Co-Host of FOX’s ‘The Five’ and Contributor for MSNBC’s ‘Morning Joe’, Harold Ford Jr., Michelle Korsmo, President & Chief Executive

Officer of the National Restaurant Association, Sean Kennedy, Executive Vice President of Public Affairs for the National Restaurant Association, Sen. Roger Marshall (R-KS), co-author of the Credit Card Competition Act, Representatives Josh Gottheimer and Maria Salazar, members of the bi-partisan Problem Solvers Caucus, among others. Tuesday’s conference programming was followed by a Restaurant PAC reception and an intimate private dinner for SC conference attendees hosted by SCRLA Immediate Past Chair and Current National Restaurant Association Board Member, Carl Sobocinski and a Late-Night Hospitality Party at Crimson Whisky Lounge featuring live music, networking, and fellowship.

On Wednesday, our delegation traveled up to Capitol Hill for in-person meetings with Senator Lindsay Graham, Representative Nancy Mace, Representative Ralph Norman, Representative William Timmons, Representative Russell Fry, and Representative Joe Wilson. For the other remaining offices, our delegation met with various staff members ranging from Legislative Assistants to Chiefs of Staff. The meetings were wellreceived, and our members had the opportunity to share with their elected officials first-hand experiences about how critical policy actions by Congress could have an immediate positive impact on how they operate their businesses.

A big THANK YOU to those in attendance and we hope YOU will consider joining us at next year’s Public Affairs Conference! Save the date: the 2025 Public Affairs Conference will be held April 1-3.

Technology use in restaurants is accelerating, creating new touchpoints between restaurants and the consumers they serve, according to the National Restaurant Association’s Restaurant Technology Landscape Report 2024. The report, released today, identifies the varying expectations consumers have regarding technology, depending on whether they are dining at a fullservice restaurant or ordering delivery to their homes, as well as generational differences in preferences

Key highlights include:

• Expect to see more technology in the coming year – 55 percent of operators are planning investments to improve their service areas, while 60 percent are looking for technology that will enhance the customer experience.

• 16 percent of operators plan to invest in Artificial Intelligence (AI) integration (including voice recognition) in 2024.

• 82 percent of Gen Z adults are comfortable placing an order at a limited-service restaurant with a smart phone app.

• 65 percent of all adult consumers would be comfortable paying their check at a fullservice restaurant with a computer tablet at the table.

Restaurant operators are getting creative in how they expand technology offerings, paying close attention to consumer preferences, but generational differences persist. When asked how likely they’d be to interact with a tablet at the table, a solid majority of Gen Z adults, millennials and Gen Xers say they’d use these options but fewer than half of baby boomers said they would.

Compared with fullservice and limited-service options, the use of technology in the delivery segment is already baked into consumers’ expectation. They expect to be able to access, order, customize and pay for delivery orders through their computers or smartphones and if they can’t, they’ll order from somewhere else.

“The data clearly show that restaurant operators and owners are rapidly embracing technology and integrating it into their daily operations,” said Hudson Riehle, Senior Vice President of Research and Knowledge for the National Restaurant Association.