Employers can comment on 'joint employer' standard by summer, NLRB chairman says

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NLRB Chairman John Ring
NLRB Chairman John Ring

The National Labor Relations Board expects to issue a notice of proposed rulemaking no later than this summer regarding the standard for determining joint-employer status, the agency's chairman said Tuesday.

John Ring's comments were contained in a letter to Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT) and Kirsten Gillibrand (D-NY), who had written to him on May 29 to express concerns that the NLRB will use the rulemaking process, rather than adjudication, to try to circumvent ethics restrictions that apply to adjudications.

Ring said it is not his intention to skirt ethics rules. In fact, he said, he's initiating an ethics review at the agency.

“I view it as my responsibility to ensure the agency upholds the highest ethical standards in everything we do,” Ring said. “To that end, we will be announcing in the near future a comprehensive internal ethics and recusal review to ensure that the agency has appropriate policies and procedures in place to ensure full compliance with all ethical obligations and recusal requirements.”

It was an ethical issue that led to the joint employer standard being in effect today.

The 2015 Browning-Ferris decision holds that a company must exhibit only the potential to exert control over terms and conditions of employment, rather than have “direct and immediate” control as had been the previous standard, to be considered responsible for decisions related to worker wages and working conditions, including labor law violations.

Organizations representing senior living operators had objected to the revised definition, saying that it could negatively affect management-employee relations and resident care. The new definition was thought to apply to senior living operators that use temporary or contract workers as well as operators that have franchises, among others.

The 2015 standard has been the focus of several legal efforts since its issuance. In June 2017, Alexander Acosta, labor secretary in the Trump Administration, announced that he would be rescinding the standard. In February, however, the definition reverted to the Obama-era one after the NLRB announced that one of its members had a potential conflict of interest and should not have voted in a related case.

Warren, Sanders and Gillibrand said they believe that NLRB members already have made up their minds to overturn the existing standard.

“While it is hard to see how such an action could reduce uncertainty, it is very easy to understand how it appeases corporate interests desperately seeking to escape liability under Browning-Ferris and suppress their workers' efforts to organize,” they wrote.

Ring, however, said that although he has an opinion on the matter, “I have an open mind and will consider all comments we receive from interested parties.”

“Whatever standard the board ultimately adopts at the conclusion of the rulemaking process, my hope is that the final rule will be bringing far greater certainty and stability to this area of labor law consistent with congressional intent,” he said.

Any proposed rule would require approval by a majority of the five-member board. First, a notice of proposed rulemaking would be issued, followed by a public comment period.

See the links below, under Related Articles, for more on the history of the standard.

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