The NLRB today published a notice that it was considering issuing a proposed rule on joint employer status. “Joint employer” refers to the question of whether one business can be considered the employer of another business’ employees.
This question has been a hot topic for many years. It was at issue in the Obama NLRB’s much discussed BFI decision in 2015, which was covered on this blog here. More recently, the Trump NLRB issued the Hy-Brand decision overruling BFI. But, as a result of a recusal issue involving Member Emanuel, the Hy-Brand decision was later vacated.
In a press release about the notice, NLRB Chairman Ring (R) described the joint employer issue as “one of the most critical issues” in labor law. He expressed his view that rulemaking would offer the “best vehicle to fully consider all views on what the standard ought to be.” Interestingly, the press release notes that the decision to include the proposed rulemaking on the regulatory agenda did not “reflect the participation of” Members Pearce (D) and McFerran (D).
For labor professionals, this development is certainly an important one to watch. The NLRB has historically not exercised its rulemaking authority very often. So, the decision to pursue rulemaking in this situation where it has traditionally relied upon decisions in specific cases that come before it is a significant one for practitioners in the field.
Other than a commitment to issue a proposed rule “as soon as possible,” neither the NLRB’s published notice nor the press release provide a specific timeline for publication of a proposed rule. Stay tuned to vorysonlabor.com for additional updates.