June 08, 2018
John Ring, Chairman of the National Labor Relations Board, announced that “internal preparations are underway” to publish a proposed joint employer rule “as soon as possible, but certainly by this summer."
Employers are “almost completely in the dark" after the Browning-Ferris decision was reinstated earlier this year, according to Chairman Ring, who further noted that the issue “continues to be a hotly debated subject.” The Board has decided not to revisit the Browning-Ferris case in the wake of controversy over how it was decided, but will instead proceed with rulemaking to resolve the issue.
The rulemaking can only apply prospectively as required by law governing agency rulemaking, whereas a joint employer standard adopted by a case decision could apply retroactively.
In response to concerns raised by Senate Democrats, Chairman Ring also announced the Board will undertake “a comprehensive internal ethics and recusal review” to ensure the Agency fully complies with its obligations. Moreover, the “prospective application of rulemaking” should also address any ethical concerns about pending cases.
The larger problem is that most “joint employer” issues arise under other laws. Even if the NLRB successfully reverses the Obama Board's joint employer rule, issues arising under the wage and hour and discrimination laws at both the federal and state level will continue. To that end, the Association is urging Senate consideration of the House-passed "Save Local Business Act" (H.R. 3441).
What to expect from the NLRB: While a proposed rule could be out by September, it could be 18 months before a final rule reversing Browning-Ferris is published, and the rule will likely be challenged in court, which could further delay its implementation date. However, the Board could rule on a joint employer case that does not have recusal issues before then.