The National Labor Relations Board on Tuesday announced plans to replace a joint employer rule that took effect in April 2020.
Under the April 2020 rule, the board sought to return to a previous joint employer standard that was in place prior to a decision in the 2015 Browning-Ferris case, which included a staffing buyer and contingent workers. The Browning-Ferris decision ushered in a more worker-friendly rule.
In Tuesday’s “Notice of Proposed Rulemaking,” the NLRB said the 2020 rule repeats the errors that the board corrected in Browning-Ferris.
The announcement also follows a July 29 ruling by the US Circuit Court of Appeals for the DC Circuit that remanded the Browning-Ferris case back to the NLRB.
In a statement, the NLRB said that under its rule proposed Tuesday, “two or more employers would be considered joint employers if they ‘share or codetermine those matters governing employees’ essential terms and conditions of employment.” These would include wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules.
The board also proposes to consider “both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”
NLRB Chairman Lauren McFerran defended the new, proposed rule in Tuesday’s announcement.
“In an economy where employment relationships are increasingly complex, the board must ensure that its legal rules for deciding which employers should engage in collective bargaining serve the goals of the National Labor Relations Act,” McFerran said.
“Part of that task is providing a clear standard for defining joint employment that is consistent with controlling law,” she continued. “Unfortunately, the board’s joint employer standard has been subject to a great deal of uncertainty and litigation in recent years. Rulemaking on this issue allows for valuable input from members of the public that will help the board in its effort to bring clarity and certainty to these significant questions.”
McFerran, along with board members Gwynne Wilcox and David Prouty, proposed the new joint-employer standard. Board members Marvin Kaplan and John Ring dissented.
Public comment is being accepted on the Notice of Proposed Rulemaking through Nov. 7. They can be submitted either electronically to regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, executive secretary, National Labor Relations Board, 1015 Half St. S.E., Washington, DC 20570-0001.