NLRB: Rulemaking for Joint Employer Standard

With Epic Systems Corp. v. Lewis (2018) having chipped away at controversial National Labor Relations Board (NLRB) decision-making, the next topic potentially on the chopping block is the joint employer standard. In late 2017, the NLRB issued a decision in Hy-Brand Industrial Contractors, Ltd. (2017) which eased the joint employer standard set forth just two years earlier in Browning-Ferris Industries of California, Inc. (2015). However, the NLRB vacated the Hy-Brand decision after it determined that one of its commissioners had improperly participated despite a conflict of interest. The NLRB then stated that it would consider rulemaking to clarify the joint employer standard.

On May 29, 2018, Senators Elizabeth Warren (D-MA), Bernie Sanders (D-VT), and Kirsten Gillibrand (D-NY) authored a letter to the NLRB in which they “expressed concerns” about the proposed rulemaking. Specifically, the Senators worried that the rulemaking would be used to once more overturn the Browning-Ferris standard, thereby, in their view, “undermin[ing] labor rights.”

On June 5, 2018, the NLRB responded to the letter, indicating that it intended to move forward with rulemaking this summer and that it would also be conducting a review of its ethics and recusal procedures.  The NLRB rulemaking will clarify the hotly contested joint employer standard, with major implications expected, either way, for both employees and employers.