June 27, 2022

Volume XII, Number 178

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June 27, 2022

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June 24, 2022

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Labor Board Considers Joint Employer Standard Rulemaking

The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.

The current standard is set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015). In that case, the NLRB announced a union-friendly joint employer test under which the Board will find two entities are joint employers where one exercises direct or indirect control over the other’s employees, or where one entity has reserved rights of control over the other’s employees, even if unexercised. The Browning-Ferris standard was reinstated when the NLRB vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) on February 26, 2018.

Hy-Brand, which overruled Browning-Ferris and reinstated the former joint employer standard requiring a finding of direct control, was vacated after the Board’s Inspector General released a report stating that Member William Emanuel should have recused himself from participating in the decision. Emanuel’s law firm represented one of the joint employers involved in the Browning-Ferris decision.

Since Hy-Brand was already overruled once, conventional wisdom is the Board, once again, will reverse Browning-Ferris when the opportunity arises. However, to reverse Browning-Ferris,all three Republican Board members (Emanuel, Marvin Kaplan, and Chairman John Ring) likely would need to participate in the decision to form a 3-2 majority. (A 2-2 vote would result in the Browning-Ferris standard remaining in place.)

It appears that the rulemaking proposal, which was prepared at the request of Chairman Ring, is an effort to avoid any future conflict problems and the inability of Senate Republicans to get legislation to overturn Browning-Ferris passed. (Legislation to overturn Browning-Ferris has been filed in Congress, but Senate Republicans have struggled to get the Democratic votes necessary to pass it.) Now, the 3-2 Republican-majority Board is seeking an alternate route around these roadblocks.    Next, a Notice of Proposed Rulemaking will be issued, affording the opportunity for public comment. A majority of the five-member Board will need to approve the proposed rule.

Rachel E. Munoz contributed to this piece.

Jackson Lewis P.C. © 2022National Law Review, Volume VIII, Number 143
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About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
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