On June 21, 2022, the National Labor Relations Board (“NLRB”) released its rulemaking agenda for Spring 2022, indicating the Board is considering revisions to two significant and tumultuous topics pursuant to the rulemaking process:  (1) the joint-employer standard under the National Labor Relations Act (“NLRA”), and (2) representation procedures, including those relating to blocking charges, voluntary recognition and bargaining relationships in the construction industry.

Joint Employer Status under the NLRA

As foreshadowed by the Board when it announced its regulatory agenda in December 2021 (discussed here), the NLRB will engage in rulemaking on the “joint employer” standard under section 2(2) of the National Labor Relations Act, likely reverting to the standard that existed prior to the April 2020 rule.

As previously discussed (here, here, and here), the “joint employer” standard has fluctuated significantly over the past several years. This standard has important implications, often for contractors/subcontractor relationships, parents/subsidies, and the like, because joint employers have responsibilities to comply with the NLRA regarding another entity’s employees. For example, joint employers must participate in collective bargaining over their employees’ terms and conditions of employment, and may be jointly and severally liable for the other employer’s unfair labor practices.

The current standard for “joint-employer” status was established by the NLRB through its rulemaking authority in 2020, and is codified at 29 C.F.R. § 103.40.  Under the current standard, which has been in effect since April 27, 2020:

“An employer… 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. To establish that an entity shares or codetermines the essential terms and conditions of another employer’s employees, the entity must possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship with those employees.” (Emphasis added).

Further, “essential terms and conditions of employment” is specifically defined to include “wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” This standard varies from the previous standard, under which affiliated companies would be considered “joint employers” where a company possessed the authority to control those employees’ terms and conditions of employment, even if the company did not actually exercise such authority. A summary fact sheet on the 2020 final rule is available here.

Since the current “joint-employer” standard was promulgated via rulemaking, it cannot be altered by a NLRB decision, but rather the Board must similarly revise the standard through rulemaking or simply rescind the April 2020 rule without replacement – in the latter scenario, the case law would immediately revert to the prior Browning-Ferris standard that prevailed prior to the April 2020 rule, and would once again, subject the joint-employer standard to potential alteration by some future Board decision or rule.

Representation Election Procedures

The Board will also consider revising the representation election procedures under 29 C.F.R. 103, with a “focus” on the April 1, 2020 amendments implemented by the Board. A helpful summary of the April 1 amendments is available in an NLRB-published Fact Sheet and we also reported on those amendments here.

The three major changes implemented by the April 1, 2020 amendments regarding union election and recognition procedures were as follows:

  1. Replacing the blocking charge policy to expedite the election by implementing vote-and-impound or vote-and-count. Per this rule, a party may not block an election from occurring merely by filing charges.  Despite a pending unfair labor practice charge, the election will proceed as scheduled, and the votes will either be impounded (i.e., not counted), or counted, depending on the nature of the alleged unfair labor practice.
  2. Reinstating Dana Corp., 351 NLRB 434 (2007), challenges to voluntary recognition, which provides that where an employer voluntarily recognizes a union pursuant to NLRA Section 9(a), it must post a notice to its employees reflecting the same, and employees may challenge such recognition if they petition for a secret-ballot election within 45 days thereafter. If no petition is filed during the 45-day notice period, the voluntary recognition bar would operate for a “reasonable period of time” thereafter.
  3. For construction industry employers, requiring evidence of majority-employee support for Section 9(a) recognition in addition to contractual language. Such evidence would be the same showing necessary for unions in non-construction industries to establish recognition.

It remains to be seen how the Board will revise these election procedures, including whether the April 1, 2020 amendments will be revised or rescinded altogether.

Next Steps:

To advance its agenda, the Board will likely issue a Notice of Proposed Rulemaking (“NPRM”), which opens the formal process for public comment on the proposed rules. The website for the Office of Information and Regulatory Affairs indicated that for each rule, the expected date for the NPRM is September 2022.  The Board may also elect to hold public hearings at that point.

NLRB Chairman McFerran commented that the Board “encourage[s] the public to take advantage of these opportunities to share their views, and [looks] forward to getting feedback on these important issues in the future.”

We will continue to monitor and report on developments with regard to these rulemaking priorities.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.