Coming on the heels of the Labor Day holiday, in a long anticipated move, the National Labor Relations (“NLRB”) Board issued a draft of a new proposed joint employer standard, scheduled to be published on September 7, 2022. If ultimately implemented, the NLRB’s Notice of Proposed Rulemaking (“NPRM”) would
NLRB Releases Spring Rulemaking Agenda Forecasting Changes To Joint Employer Standard and Representation Election Procedures
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
NLRB Plans to Revise Joint Employer Standard Once Again
On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. It remains to be seen exactly what the contours of the new joint-employer rule would be, although
NLRB Issues its Final Rule for its New Joint Employer Standard
This morning the National Labor Relations Board (the “Board”) unveiled the final rule setting forth the new legal test it will apply in analyzing whether affiliated businesses are “joint employers”. The final rule, which will be effective on April 27, 2020, can be found here.
Background
On September 13,
New Joint-Employer Standard Properly Developed But Improperly Applied, Rules Federal Appeals Court
There have been many precedent changing decisions coming from the NLRB in the last few years. Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered its longstanding joint employer test. The new joint-employer test made it much more likely
NLRB Announces Proposed Rule Changing Joint-Employer Standard
The National Labor Relations Board announced that it will publish a Notice of Proposed Rulemaking today, September 14, regarding its joint-employer standard.
The proposed rule will state that an employer may be considered a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control
NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard
As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux. For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to
ABOUT FACE! Under Pressure, NLRB Vacates Joint Employer Standard and Returns to Browning-Ferris
In an unexpected and critical turn of events, after extensive political pressure, the NLRB, sitting as a three-member panel comprised of Chairman Kaplan and Members Pearce and McFerran, vacated last year’s decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017) due to Member William Emanuel’s participation in the decision. Prior to joining the Board, Member Emanuel was a partner at Littler Mendelson, and his firm represented one of the unsuccessful parties in the Browning-Ferris case—which established the “joint employer” standard that Hy-Brand overturned. The Board concluded that Emanuel should have recused himself from the decision.
The Hy-Brand decision, which we previously reported on here and here, reinstated the traditional joint-employer standard that was significantly relaxed under the Obama-era Board in Browning-Ferris. As a result of the Board’s order to vacate, Hy-Brand’s overruling of Browning-Ferris is of “no force or effect.” So for the time being, Browning-Ferris returns to being the law of the land, and this outcome could have far-reaching implications to future cases by the Board involving potential conflicts of interest involving Board members.