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NLRB Considers Changing Joint-Employer Standard via Rulemaking Process

By: Cary Burke

On May 9, 2018, National Labor Relations Board (“NLRB” or “Board”) Chairman John F. Ring announced the Board is considering whether to change the current joint-employer standard via the Board’s rulemaking process. 

As we discussed previously here, the Board’s joint-employer standard has garnered a great deal of attention in the past year, with the Board overturning, then returning to, the standard enunciated in the controversial Browning-Ferris decision. 

When announcing the Board’s consideration of the rulemaking process, Chairman Ring stated:

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 rulemaking 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.

Any proposed rule would require the approval by a majority of the Board’s five members, with the next step being the issuance of a Notice of Proposed Rulemaking. 

Employers that may be subject to the Board’s joint-employer standard should follow the Board’s potential rulemaking closely.  If the Board issues a Notice of Proposed Rulemaking, then employers will be able to submit comments to the Board expressing their opinion regarding the proposed rule(s).  In addition, the Board’s general counsel has suggested he will be searching for an appropriate case to seek to overturn the Browning-Ferris standard.  We will be watching this issue closely, so stay tuned.