On September 10, 2025, Representative Kevin Hern (OK-01), together with Democrat co-lead Representative Don Davis (NC-01), introduced the American Franchise Act (H.R. 5267, hereinafter “AFA”). The AFA is designed to provide consistency and clarity on when a franchisor may be considered a “joint employer” of a franchisee’s employees under the National Labor Relations Act (“NLRA” or the “Act”). Aimed at curtailing joint employer liability and stopping the see-saw rulemaking that has plagued the National Labor Relations Board (“Board”) in recent years, this legislation would potentially govern the rights of approximately five percent of all workers in the United States, or approximately 8,400,000 individuals.
Under the prior two Administrations, competing Boards sought to establish joint employer standards through the agency’s decisions and rule making process. The result was a back-and-forth swing between narrow and broad definitions of “joint employer” status. For example, in 2015, the Democratically-controlled Board issued its decision in Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015) (“BFI”), upending years of precedent by dramatically expanding the definition of a “joint employer” and categorizing many more independent companies as joint employers. Under BFI, two entities were deemed joint employers based on the mere existence of reserved joint control, indirect control, or control that was limited and routine. In 2020, the Republican-controlled...
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