Weekly Legislative Update
November 6, 2023

Remarks as Prepared for Delivery by National Economic Council Director Lael Brainard on the Right to Repair

From 10/24/23: Thank you all for joining us today. In the simplest terms, the right to repair means that when something you own breaks, you should have the right to fix it yourself or to take it to an independent repair shop.

You might ask why we care about the right to repair. President Biden knows kitchen table economics matters most for hardworking Americans, and having the basic right to repair electronic devices alone can save a family $400 a year on average. We will hear today how the basic right to get a product repaired can also save farmers thousands of dollars when their tractor breaks down and create opportunities for small independent repair shops to thrive.

For everything from smartphones to wheelchairs, to cars, to farm equipment, too often manufacturers make it difficult to access spare parts, manuals, and tools necessary to make fixes. Consumers are compelled to go back to the dealer and pay the dealer’s price or to discard and replace the device entirely. This not only costs consumers money, but it prevents independent repair shops from competing for the business and creates unnecessary waste by shortening the life span of devices.

Research suggests that the ability to repair consumer electronics devices could save American consumers $49.6 billion annually, reduce the nearly 7 million tons of annual electronic waste in the U.S., and support small independent repair shops.

President Biden’s call to action on the right to repair in his Executive Order on Promoting Competition of July 2021 jumpstarted a growing movement. Now federal agencies are taking action to make it easier and cheaper to repair things you own, state legislatures are passing laws across the country, and the private sector is making voluntary commitments, from companies like Apple and Microsoft.

I’m joined today by Chair Khan of the Federal Trade Commission, which voted unanimously to ramp up enforcement of right to repair provisions, taking on cases affecting grills and motorcycles. I’m also joined by Janet McCabe, Deputy Administrator of the Environmental Protection Agency, which issued a letter earlier this year affirming their support for right to repair, including for farm equipment, and its compatibility with protecting our environment and the Clean Air Act.

I’m also joined by Tom Perez, Senior Advisor to the President and Director of the Office of Intergovernmental Affair, along with a bipartisan group of state officials who have all successfully passed right to repair laws in their states—states like California, Colorado, New York and Minnesota. And 30 states beyond those have introduced right to repair bills. Today, the Administration is calling on other states to follow suit and for Congress to pass national right to repair laws, as well.

Today we’ll hear from Apple, which endorsed that new California law. Under the California law, companies will have to make the parts, tools, and documentation needed for repairs of consumer electronic devices and appliances available to independent repair shops and consumers at fair and reasonable prices. California’s new law will help ensure that consumers and independent repair businesses alike have the resources available to safely repair their devices in a manner that does not compromise their privacy or data security. And today, as part of this convening, Apple is announcing that they are going to do this nationwide. That means that whether you are in California, Maine or Michigan, Apple will make the parts, tools, and documentation needed to repair your Apple products available to you at reasonable prices, as outlined in the California law. And Apple is calling for national right to repair legislation.

We’ll also hear from Danny Wood, a Colorado farmer, who will share how a lack of robust right to repair laws can cost farmers thousands of dollars when your tractor breaks down. And Heather Walch, who runs a small business in Minnesota, will share her observations about how promoting the right to repair is important to ensure independent businesses aren’t shut out of the market. Finally, we’ll hear from Allstate on how consumers and businesses stand to save hundreds when they can utilize aftermarket parts.

This is a bipartisan issue that resonates with people all over the country. With that, I will turn to White House Director of Intergovernmental Affairs, Tom Perez.

The NLRB issued its final rule altering the standard for determining joint employer status under the NLRA. The rule replaces the Board’s 2020 final rule, which had addressed the damaging standard adopted by the Obama-era Board in Browning Ferris Industries (BFI). We’re going through the rulemaking and will provide more details once processed. 

The final rule appears to be very closely aligned with the Board’s NPRM and represents a drastic expansion to joint employer status for purposes of the Act. Notably, the final rule explicitly states that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) OR exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer.

?This means that either indirect or reserved control may stand alone as basis for the finding of a joint employer relationship, and the existence of either – without regard to the extent of the reserved or indirect control – indicates joint employer status. This standard extends beyond the harmful policy adopted in BFI and as Member Kaplan notes in his dissent, the rule “is potentially even more catastrophic, as well as more potentially harmful to our economy, that the Board’s previous standard in BFI."

Final Reminder to Submit Comments for Proposed Rule to Update the Executive, Administrative and Professional Regulations

As a final reminder, the Federal Register published the U.S. Department of Labor’s Notice of Proposed Rulemaking to Define and Delimit the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. 

Despite the request for a time extension by several organizations including TIA, the public comment period for this proposal will end tomorrow on November 7, 2023. 

Workers, employers, and other interested stakeholders are encouraged to provide comments on this proposal.

?You can find instructions on how to comment on regulations.gov.

For more information on the Notice of Proposed Rulemaking, please visit dol.gov/OT, contact the Wage and Hour Division or call toll-free at 1-866-4US-WAGE (487-9243).