NLRB may address joint employer status

The National Labor Relations Board is considering issuing a rule on the standard for determining joint employer status under the National Labor Relations Act, the agency said Wednesday.

There have been stream of NLRB developments over the issue. 

In 2015, a Democrat-controlled NLRB overturned a standard that had been in place since 1984 and held in its Browning-Ferris ruling that a company need only have indirect control of a worker and not even exercise that control to be considered a joint employer. 

In December, when former chairman Philip A. Miscimarra, a Republican, was still in office with a Republican majority in place, the NLRB overturned the 2015 ruling on a 3-2 vote in a case involving Muscatine, Iowa-based Hy-Brand Industrial Controls Ltd. and Milan, Illinois-based Brand Construction Co. and returned to the pre-Browning-Ferris standard. 

But after an objection was raised against Republican NLRB member William J. Emanuel’s participation in the vote because of a perceived possible conflict of interest, three NLRB board members issued an order vacating the ruling, which in effect restored the Browning-Ferris ruling.

Experts have predicted that with the current Republican majority, the NLRB will rescind Browning-Ferris at the first opportunity

Newly-installed NLRB chairman John F. Ring, a Republican, said in Wednesday’s statement: “Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today.

“The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities.

“In my view, notice-and-comment rule-making offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”

The statement said the NLRB has begun the internal process necessary to consider rulemaking on the joint-employer standard.

Ronald Meisburg, a partner with Hunton Andrews Kurth L.L.P.in Washington, said: “This is a very interesting development. The board has not traditionally engaged in substantive rule-making.

“Rules can make the law more enduring and predictable. But it remains to be seen whether this is opening a door for more substantive rulemaking, or this is a unique occurrence.”