March 18, 2019

March 18, 2019

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NLRB Issues New Strategic Plan and Provides More Time for Comment On Proposed Joint-Employer Rule (US)

On December 7, 2018, the National Labor Relations Board (“NLRB”) issued its 2019-2022 Strategic Plan, which focuses on four primary goals.  First, the Board targets a 20% decrease, collectively, in the time required to resolve unfair labor practice charges from filing to resolution.  This collective decrease is to be accomplished through incremental decreases of 5% of the time spent in each of four stages of the charge process, including: 1) the initial charge intake stage resulting in dismissal or charge prosecution; 2) processing of a formal complaint through settlement or an administrative law judge (“ALJ”) decision; 3) the time between an ALJ decision and a Board order; and 4) the time between a Board order and case closure (which can include voluntary compliance and completion of Board order requirements, or enforcement of the order through the federal appellate courts).  The other three Strategic Plan goals are to 1) promptly investigate and resolve questions regarding individual employee representation (with a goal of resolution within 100 days); 2) achieve “organizational excellence” through enhanced focus on recruiting and retention of agency employees; and 3) enhance efficiency in its use of resources and public trust in the agency.  Some of the directives outlined to accomplish the latter goal are to, among other things, utilize a standardized case management system, increase electronic service and filings of case records, and increase electronically-available information to the public.  The Plan also notes the Board intends to develop a five-year plan for field office size reduction or closure, increase agency outreach to unrepresented employees and cohesive organizations, and establish relationships and agreements with other agencies for “co-extensive investigations.”  The Plan also states the Board intends to focus on increasing early resolution of cases through settlement, which can significantly reduce agency expenses.  (The Plan notes that a mere a 1% drop in settlement of cases before litigation translates to increase in costs of $2 million to the agency.)  Based on external factors, the agency anticipates a reduction of between 500-1,000 cases in FY2019.

Of separate note, the Board also announced on December 10, 2018 that it is extending the period for public comment on its proposed joint-employer rule, which would establish the standard for determination of when two or more entities can be considered joint employers of particular employees, thereby subjecting them to financial and other encumbrances such as union bargaining and potential joint and several liability for National Labor Relations Act violations.  The proposed rule, advocated by the Republican-majority Board, more effectively balances the interests of employers in maintaining cooperative business operations without running the same risk of creating a joint-employer situation as the current, employee-friendly standard adopted by the previous, Democrat-majority Board in Browning-Ferris Industries.  As you may recall, the Board first attempted to redefine the joint-employer standard the prior Board instituted through Browning-Ferris Industries in the Hy-Brand Industrial Contractors case, but after the controversy surrounding potential conflicts of interest by a Board member involved in that decision, which we detailed for you here and here, the Board initiated its rulemaking process for formal adoption of a new joint-employer standard.  The Board previously extended the public comment period on October 30, 2018, until December 13, 2018, and has again provided more time – now until January 13, 2019 – for input for this hotly-debated issue.  Comments may be submitted directly to the NLRB using their online portal.

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About this Author

Daniel B. Pasternak, Squire Patton Boggs, Phoenix, Labor Litigation Layer
Partner

Dan Pasternak focuses his practice on litigating labor and employment claims, representing management in traditional labor relations matters, and working with employers to develop and enforce business-sensible policies and practices to effectively manage their human resources.

Dan represents employers before federal and state courts and administrative agencies, and in arbitration and mediation proceedings, in employment matters arising under the array of federal and state employment laws, including discrimination, harassment, retaliation,...

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