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NLRB chairman rejects request to stop proposed joint-employer rule

January 18 2019

NLRB Chairman John Ring yesterday rejected a request from two Democratic House lawmakers to back off on the board’s proposed joint-employer rule.

The proposed rule aims to roll back a 2015 decision by the National Labor Relations Board that expanded the definition of joint employment. The 2015 decision was made in a case involving staffing firm workers at a recycling site in California operated by Browning-Ferris Industries of California.The decision was made in the wake of an effort to unionize the workers at the site.

Ring was responding to a Jan. 8 letter from US Representatives Bobby Scott, D-Va., and Rosa DeLauro, D-Conn., urging the NLRB to “abide by its current joint employer standard articulated in Browning-Ferris.”

The lawmakers’ request came after the DC Circuit Court of Appeals on Dec. 28 partially upheld the NLRB’s 2015 decision but sent it back to the board for reassessment.

Ring cited the lawsuit in his response.

“The court panel denied enforcement of the board’s Browning-Ferris order and remanded the case to the board for further consideration,” Ring wrote. “Moreover, although the court’s recent decision did hold that an employer’s indirect control of, and contractually reserved right to control, the terms and conditions of employment of another employer’s employees can be relevant to determining joint-employer status, the DC Circuit expressly disapproved of the board’s application of that indirect control test.”

Separately, 11 attorneys general — from California, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Virginia, Washington and Washington, DC — also filed a letter on Jan. 11 with the NRLB opposing its proposed rule.

Also, in light of the partial government shutdown, yesterday the board established an email address at regulations@nlrb.gov for the electronic submission of public comments on the rulemaking. The deadline for comments is Jan. 28. The deadline for comments replying to comments is Feb. 11.

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