Oct 19 -- The comment periods for the notice of proposed rulemaking published September 7, 2022, at 87 FR 54641, are extended. Comments must be received by the Board on or before December 7, 2022, and reply comments to the initial comments must be received on or before December 21, 2022.
https://www.federalregister.gov/d/2022-22690
Sept 7 -- This notice of proposed rulemaking (NPRM) proposes to rescind and replace the final rule entitled “Joint Employer Status Under the National Labor Relations Act,” which was published on February 26, 2020 and took effect on April 27, 2020. The proposed rule would revise the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (NLRA or Act), are joint employers of particular employees within the meaning of section 2(3) of the Act. The proposed changes are designed to explicitly ground the joint-employer standard in established common-law agency principles and provide relevant guidance to parties covered by the Act regarding their rights and responsibilities when more than one statutory employer possesses the authority to control or exercises the power to control particular employees' essential terms and conditions of employment.
Comments regarding this proposed rule must be received by the National Labor Relations Board (NLRB or Board) on or before November 7, 2022.
Background: As described more fully below, in 2015, the Board restored and clarified its traditional, common-law based standard for determining whether two employers, as defined in section 2(2) of the Act, are joint employers of particular employees within the meaning of section 2(3) of the Act. See Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015) (BFI). Consistent with established common-law agency principles, and rejecting prior limitations established without explanation, the Board announced that it would consider evidence of reserved and indirect control over employees' essential terms and conditions of employment when analyzing joint-employer status.
While BFI was pending on review before the United States Court of Appeals for the District of Columbia Circuit, and following a change in the Board's composition, the Board issued a notice of proposed rulemaking with the goal of establishing a joint-employer standard that departed in significant respects from BFI.
During the comment period, the District of Columbia Circuit issued its decision in Browning-Ferris Industries of California, Inc. v. NLRB, 911 F.3d 1195, 1222 (D.C. Cir. 2018), upholding “as fully consistent with the common law the Board's determination that both reserved authority to control and indirect control can be relevant factors in the joint-employer analysis,” and remanding the case to the Board to refine the new standard. Thereafter, the Board issued a final rule that again constrained the joint-employer standard. Because the Board believes, contrary to our dissenting colleagues and subject to comments, that the 2020 final rule (2020 Rule) repeats the errors that the Board corrected in BFI, it proposes to rescind that standard and replace it with a new rule that incorporates the BFI standard and responds to the District of Columbia Circuit's invitation for the Board to refine that standard in its 2018 decision on review. . . .
For nearly the entirety of the Act's history, the Board has developed its joint-employer jurisprudence through case-by-case adjudication. The Board's 2020 Rule represented a significant departure from this precedent, for the first time formulating a joint-employer standard through the Board's rulemaking authority. In comparison to rulemaking, adjudication possesses a number of benefits when determining joint-employer relationships. The issue of common-law joint-employer status is a highly fact-specific one, which may be better suited to individualized determination on a case-by-case basis.
Further, an exhaustive, “one-size-fits-all” rule may be an inappropriate mechanism to address the complex and fact-specific scenarios presented by sophisticated contracting arrangements in the modern workplace.
Subject to comments, the Board nevertheless believes that rescinding the 2020 Rule and setting forth a revised joint-employer standard through rulemaking is desirable for several reasons. First, the Board believes, subject to comments, that the 2020 Rule's approach to defining joint-employer status wrongly departs from common-law agency principles, which the National Labor Relations Act makes applicable in this context. In the Board's view, the 2020 Rule again incorporates control-based restrictions that unnecessarily narrow the common law and which threaten to undermine the goals of Federal labor law. By expressly grounding the joint-employer standard in the common law, the proposed rule would avoid repeating the errors the Board made beginning in the mid-1980s and incorporated again in the 2020 Rule. Instead, the proposed rule would restore the Board's focus on whether a putative joint employer possesses the authority to control or exercises the power to control particular employees' essential terms and conditions of employment, consistent with the common law and relevant court decisions. Finally, the proposed rule responds to the District of Columbia Circuit's invitation for the Board to “erect some legal scaffolding” to ensure that the joint-employer standard appropriately focuses on forms of reserved and indirect control that bear on employees' essential terms and conditions of employment.
Moreover, the Board believes that establishing a definite, readily available standard will assist employers and labor organizations in complying with the Act. In addition, because the joint-employer standard has changed several times in the past decade, the Board sees a heightened need to seek public comment on this important area of labor law. The Board also seeks to establish a rule regarding joint employers' bargaining obligations and potential unfair labor practice liability that correctly reflects both background legal principles and the National Labor Relations Act's public policy of “encouraging the practice and procedure of collective bargaining” and maximizing employees' “full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. 151. While no rule can eliminate the prospect of all litigation in this fact-intensive area of law, it is the Board's hope that the proposed rule, codifying what we view as the essential elements of a joint employer relationship, will reduce uncertainty and litigation over the basic parameters of joint-employer status. The Board therefore tentatively believes rulemaking to have determinate advantages over addressing joint-employer issues purely through adjudication.
The proposed rule would codify the Board's longstanding joint-employer standard, approved by the Third Circuit and the District of Columbia Circuit Court of Appeals, which provides that an employer is a joint employer of particular employees if the employer has an employment relationship with those employees under established common-law agency principles and the employer shares or codetermines those matters governing at least one of the employees' essential terms and conditions of employment. Consistent with common-law agency principles and the District of Columbia Circuit's decision in BFI, the Board believes, subject to comments, that a party asserting a joint-employment relationship may establish joint-employer status with evidence of indirect and reserved forms of control, so long as those forms of control bear on employees' essential terms and conditions of employment. The proposed rule reflects the Board's preliminary view, subject to comments, that the Act's purposes of promoting collective bargaining and stabilizing labor relations are best served when two or more statutory employers that each possess some authority to control or exercise the power to control employees' essential terms and conditions of employment are parties to bargaining over those employees' working conditions.
FRN:
https://www.federalregister.gov/d/2022-19181
Media--HR Dive, NLRB proposes return to broad joint employer rule
https://www.hrdive.com/news/nlrb-proposes-broad-joint-employer-rule/631273/