NLRB ADDRESSES JOINT EMPLOYER DEBATE
NLRB ADDRESSES JOINT EMPLOYER DEBATE: On June 5, the Chair of the National Labor Relations Board (NLRB) stated that the agency intends to proceed with a rulemaking under the Administrative Procedures Act (APA) to settle the controversial definition of joint employment under the National Labor Relations Act. In a letter addressed to Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders, NLRB Chairman John Ring wrote, “[c]andor requires me to inform you that the NLRB is no longer merely considering joint employer rulemaking….A majority of the board is committed to engage in rulemaking, and the NLRB will do so.” The move to engage in a so-called notice-and-comment rulemaking under the APA is the latest turn in the joint employer saga. Debate over the joint employer standard began in 2015 when the NLRB rendered its decision in Browning-Ferris, in which the Board upended decades of precedent to rewrite the standard for establishing joint employment.
Browning-Ferris applied the joint employer standard broadly and based its interpretation on employers with “indirect” control or even the “potential” to control employees, which ensnared all manner of businesses in potential legal liability. The U.S. Chamber of Commerce and National Restaurant Association have led the charge on the joint employer interpretation review. The U.S. Chamber’s position can be reviewed here: https://www.uschamber.com/article/nlrb-confirms-joint-employer-rulemaking.