The joint employer issue at the NLRB continues to be a hotbed of activity. We last updated our readers on this issue in mid-December. Here’s what has happened since then:
Developments in the Courts. At the end of the year, the U.S. Court of Appeals for the D.C. Circuit ruled in the appeal of the Obama Board decision that started it all: BFI v. NLRB. The court refused to enforce the NLRB’s order finding joint employer status. It did so, however, not because it rejected the use of indicia of “indirect control” in the joint employer determination, but rather because the NLRB’s factual analysis in BFI “failed to differentiate between those aspects of indirect control relevant to status as an employer, and those quotidian aspects of common-law third-party contract relationships.”
Rulemaking. The NLRB continues to move its rulemaking process forward. The comment period was extended again, however, in light of the D.C. Circuit’s decision. The current deadline for comments is January 29, 2019.
Congressional Opposition. Chairman Ring (R) responded last week to a letter from Congressional Democrats who urged that the NLRB withdraw its proposed rulemaking. Chairman Ring declined to do so, indicating that the NLRB’s majority continued to believe that notice and comment rulemaking was the best way to address the lack of guidance and clarity that exists in BFI. A copy of the letter is here (pdf) for those interested in the details.
For labor professionals, the current state leaves much to be desired. The refusal to enforce the NRLB’s order in BFI means there is reason to question its continuing viability. Clearly, the NLRB’s proposed rule is intended to limit the extent to which “indirect control” plays into the analysis, but that rule is months (at least) from being finalized. All of this looming at the same time as we start to hear of presidential contenders for the 2020 race, which will clearly have an impact on the NLRB’s alignment on these issues. So, the best course is going to be to check with a trusted labor law advisor for the most suitable path forward for your particular company and industry.