NLRB Chairman John F. Ring

The National Labor Relations Board will proceed with considering a new definition for “joint employer” despite concerns expressed by two congresspeople, NLRB Chairman John F. Ring wrote in a letter Thursday.

“I can assure you that whatever standard the board ultimately adopts at the conclusion of the rulemaking process, it will bring far greater certainty, predictability and stability to this key area of labor law, consistent with congressional intent,” Ring wrote to Rep. Robert “Bobby” Scott (D-VA) and Rep. Rosa DeLauro (D-CT), who in a Jan. 8 letter had asked Ring to withdraw the board’s notice of proposed rulemaking.

In September, the NLRB proposed a rule that would define an employer as a joint employer of another company’s workers only if it “possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.”

The proposed rule would be a change from a rule established by the NLRB during President Obama’s administration, which said that a company could be considered a joint employer of another company’s workers if it possesses the right to control, or actually exercises control, whether direct or indirect, over employees’ terms and conditions of employment.

Ring pointed to a recent decision in the Browning-Ferris Industries of California v. NLRB case by the U.S. Court of Appeals for the D.C. Circuit, which found in part that “the board provided no blueprint for what counts as ‘indirect’ control.”

The board’s proposed rule had generated more than 26,000 comments as of Jan. 17, suggesting “significant interest in this topic and a wide range of views,” Ring said.

Most businesses — including senior living companies — support the proposed rule, whereas pro-labor groups oppose it. Eleven attorneys general — from California, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Virginia, Washington and Washington, D.C. — also are advocating for keeping the current joint employer standard, saying it “not only accords with well-established common law principles, but also better protects employees and provides clear expectations to employers.”

The NLRB will accept comments on the proposed rule until Jan. 28 and will accept comments on the comments until Feb. 11. Comments may be emailed to Regulations@nlrb.gov or mailed or hand-delivered to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half St. S.E., Washington, D.C. 20570-0001.