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NLRB plans to issue a proposed rule on joint-employer status

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The National Labor Relations Board plans to issue a proposed rule on the controversial issue of joint-employer status no later than this summer, Chairman John F. Ring wrote in a letter to three U.S. senators Tuesday.

Mr. Ring was writing in response to a May 29 letter from Sens. Elizabeth Warren, D-Mass., Bernie Sanders, I-Vt., and Kirsten Gillibrand, D-N.Y., expressing “strong concerns” that the agency will issue a regulation “that would undermine labor rights clarified” in the NLRB’s 2015 Browning-Ferris rule.

In that rule, the then-Democrat-controlled board held a company need only have indirect control of a worker, and not even exercise that control, to be considered a joint employer. 

The rule was briefly discarded last year by a Republican-controlled board, but then restored because of a possible conflict of interest.

The NLRB said in May it was considering issuing a rule on the standard, which led to the senators’ letter. But Mr. Ring used stronger language in his letter Tuesday, writing that “candor requires me to inform you that the NLRB is no longer merely considering joint-employer rulemaking,” and a majority of the board is committed to engaging in it.

He wrote that the agency is working toward issuing a notice of proposed rulemaking “as soon as possible, but certainly by this summer.”

Mr. Ring wrote that rather than deciding the issue with a “traditional case-by-case adjudication,” rulemaking “is appropriate for the joint-employer subject because it will permit the Board to consider and address the issues in a comprehensive manner and to provide the greatest guidance.”

Mr. Ring wrote that rulemaking applies only prospectively. “Thus, by establishing the standard for determining joint-employer status through rulemaking, the Board immediately frees its stakeholders from any concern that actions they take today may wind up being evaluated under a new legal standard announced months or years from now.”

The senators’ letter also said Mr. Ring’s public statements indicate he has prejudged the issue. In response, Mr. Ring wrote in the letter, “Although I have an open mind and will consider all comments we receive from interested parties, I will not pretend that I am devoid of opinions on the subject of the joint-employer standard, any more than my predecessors.”

He concludes the letter, however, by stating the District of Columbia Circuit Court has said agency officials should be disqualified from rulemaking when they have “an unalterably closed mind” on matters critical to a proceeding’s disposition. “I assure you, senators, that absolutely is not the case with me,” Mr. Ring wrote.