On September 14, 2018, the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register regarding its joint-employer standard. The Proposed Rule seeks to overrule the Board’s 2015 joint-employer decision in Browning-Ferris and replace it with the following in the NLRB’s Rules and Regulations:
An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.
Under this rule, there must be evidence of direct and immediate control before a joint-employer relationship can be found. “[I]t will be insufficient to establish joint-employer status where the degree of a putative joint employer’s control is too limited in scope (perhaps affecting a single essential working condition and/or exercised rarely during the putative joint employer’s relationship with the undisputed employer).”
In the NLRB’s press release announcing the Proposed Rule, the NLRB majority (Member McFerran dissented) states that the rule is necessary because:
rulemaking in this important area of the law would foster predictability, consistency and stability in the determination of joint-employer status. The proposed rule reflects the Board majority’s initial view, subject to potential revision in response to public comments, that the National Labor Relations Act’s intent is best supported by a joint-employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.
In her dissent, Member McFerran asserts that:
there is no good reason to revisit Browning-Ferris, much less to propose replacing its joint-employer standard with a test that fails the threshold test of consistency with the common law and that defies the stated goal of the National Labor Relations Act: “encouraging the practice and procedure of collective bargaining.”
Those seeking to comment on the Proposed Rule must submit their comments on or before November 13, 2018.