UPDATE: June 7, 2018: NLRB has decided that it will not reconsider its decision to vacate Hy-Brand, paving the way for it to address joint employment via regulation.
- In a letter to three Democratic U.S. senators, National Labor Relations Board (NLRB) Chairman John Ring announced Tuesday that the independent federal agency will issue a Notice of Proposed Rulemaking (NPRM) on the joint employment "certainly by this summer."
- "Internal preparations are underway" for the NPRM, Ring said, following up on the Board's May announcement that it would consider rulemaking to address the joint employer issue. Ring's message is a direct response to a May 29 letter from Sens. Elizabeth Warren, Kristen Gillibrand and Bernie Sanders that expressed concerns about the potential rulemaking.
- Ring also said the Board "will be announcing in the near future a comprehensive internal ethics and recusal review" to ensure its own compliance with "all ethical obligations and recusal requirements" — a move likely aimed at addressing recent controversy at the Board.
While the political back-and-forth between the NLRB's Republican majority and Democrats in the Senate isn't exactly surprising, Ring's announcement is more significant for its promise of a tangible outcome in the form of long-awaited clarity on joint employment.
The Board's recent Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. decision initially reversed the Obama-era Browning-Ferris standard, but the Board vacated its decision due to ethical concerns involving member Bill Emanuel (as mentioned in the original Dem letter to NLRB). Much of the confusion around Browning-Ferris stems from its expansion of the definition of "joint employer" to include companies that have "indirect control" over workers. That question has even vexed the courts; the U.S. Court of Appeals for the D.C. Circuit was reportedly confounded by the definition.
The NLRB tends to rely on adjudication to set policy, but the rulemaking process is available as well, and includes advance notice of changes and the opportunity to comment.