May 11, 2018
The National Labor Relations Board announced plans to settle “one of the most critical issues in labor law today” through notice and comment rulemaking, beginning “as soon as possible.”
NLRB Chairman John Ring observed: Current uncertainty over the joint-employer standard “undermines employers’ willingness to create jobs and expand business opportunities.”
The Board initially reversed but then reinstated the controversial Obama-era joint employer standard in Browning-Ferris after unprecedented and highly contentious questions surrounding the recusal obligations of NLRB member Bill Emanuel.
Timing unclear: “Rulemaking offers the best vehicle to fully consider all views on what the standard ought to be” said Ring, but when a proposed rule might be published is unclear as no date was provided in the NLRB’s regulatory agenda. The Board could also issue new decisions regarding joint employer while it is working on the rulemaking.
A federal court decision remains pending in Browning-Ferris, but the judges have said they'll wait to see how the NLRB handles a similar case before proceeding.
Legislation is still in play and remains the best way to provide long-term operational and legal clarity for the definition of joint employment under both the National Labor Relations Act and the Fair Labor Standards Act. The House-passed Save Local Business Act's (H.R. 3441) best shot at being enacted this year is for it to be included as part of some other must-pass legislation.