Thursday, September 13, 2018
In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.
Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.
On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out.