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NLRB Chairman Issues Letter Ahead of Expected Joint Employer Rulemaking


Recently, National Labor Relations Board Chairman John Ring sent a letter to several Senators to address ‘concerns’ they have over the expected joint employer rulemaking that the National Labor Relations Board (‘NLRB’) is set to undertake this summer. In the letter, Chairman Ring states that a majority of the NLRB is committed to engaging in rulemaking in regard to the joint employer standard.  (Of course the Chairman is likely only referring to the three Board members appointed by Republican Presidents. The other two Board members were appointed by a Democratic President).  

But first, let us take a step back for a minute to get the big picture here.  Readers will recall that after Republicans gained majority control of the NLRB, the Board issued a decision in Hy-Brand which reverted the joint employer standard back to its ‘original’ form:  Employers would only be liable for the labor law violations of their contractors if the employer exerted direct control over the terms and conditions of employment of that contractor.  This was met with rousing support by employers and business groups alike that detested the President Obama era NLRB Browning-Ferris decision which imposed joint employer liability on employers for either direct or indirect control.  However, the Hy-Brand decision did not stand for long as it was soon held that one of the Board members should have recused himself from the decision making process in Hy-Brand because of a conflict of interest.  That meant Browning-Ferris went back into place. 

Not long after this all occurred, Board members and pro-business groups began to look at whether another joint employer case could be brought before the Board to again undo Browning-Ferris.  However, questions still arose as to whether other Board members would have to recuse themselves from subsequent joint employer cases (which would likely lead to Browning-Ferris remaining in place as Republican appointed Board members likely would not have enough votes to undo Browning-Ferris).  As a result, attention turned to whether the NLRB could instead engage in rulemaking to issue a new rule that would undo Browning-Ferris. With Chairman Ring’s recent letter, he indicates that not only is the Board interested in pursuing this avenue, but in fact the Board is already set to engage in the process sometime this summer.  Now this does not necessarily mean that Browning-Ferris will be undone...but with majority control of the Board, after the comment period on the proposed joint employer rule is over, I would expect the Board will issue a new rule that reverts the joint employer standard back to only direct control.

For the time being, I would expect labor unions & Democratic Congressmen and Congresswomen to escalate their criticism of the Board’s joint employer rulemaking process.  Stay tuned.


For a copy of Chairman Ring’s letter:  https://www.nlrb.gov/sites/default/files/attachments/news-story/node-6695/nlrb_chairman_provides_response_to_senators_regarding_joint_employer_inquiry.pdf

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