NLRB to propose joint-employer rule that would undo Browning-Ferris
- The National Labor Relations Board (NLRB) will tomorrow propose new regulations, updating its joint-employer standard.
- Under the proposed rule, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.
- Comments on the rule are due 60 days from the scheduled date of publication, Sept. 14, 2018.
NLRB is attempting a long-anticipated reversal of its Obama-era joint-employer standard. The proposed rulemaking comes after a period of controversy in which it attempted to overturn the Browning-Ferris standard with another ruling, Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. That ruling, however, was vacated in February following ethical concerns about board member Bill Emanuel’s relationship with Littler Mendelson P.C., the firm that was involved in the original Browning-Ferris case.
Observers had also been waiting on a confirmation hearing for Trump administration NLRB appointee John Ring, whom was given the position of chair following his confirmation by the Senate in April. Later in June, Ring wrote to a group of senators, promising a new Notice of Proposed Rulemaking (NPRM) "certainly by this summer." It appears the board is now making good on that promise.
The rule itself would provide clarity to a highly controversial legal area for employers. According to the board, the rule "reflects the board’s preliminary view ... that the Act’s purposes of promoting collective bargaining and minimizing industrial strife are best served by a joint-employer doctrine that imposes bargaining obligations on putative joint employers that have actually played an active role in establishing essential terms and conditions of employment."
In a written dissent, board member Lauren McFerran said "there is no good reason to revisit Browning-Ferris, much less to propose replacing its joint-employer standard with a test that fails the threshold test of consistency with the common law and that defies the stated goal of the National Labor Relations Act: 'encouraging the practice and procedure of collective bargaining.'"