Dive Brief:

• The National Labor Relations Board (NLRB) is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act (NLRA). The Office of Information and Regulatory Affairs published the board's submission of intent. Board Chairman John F. Ring requested the submission​, which is included in the in the agency's filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions.
• The NLRB has begun the internal process needed to consider rulemaking on the joint-employer standard. All proposed rules require approval by a majority of the five-member board; the next step is issuing a Notice of Proposed Rulemaking.
• Calling joint-employer status one of the most critical issues in labor law today, Ring said the current uncertainty over the joint-employer standard undermines employers’ willingness to create jobs and expand business opportunities. He added that notice-and-comment rulemaking is the best way to consider all views on what the standard should be.

Dive Insight:

Many in the employment community had hailed Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. as the solution to clarity issues with the expansive Browning-Ferris standard. But the NLRB vacated Hy-Brand in February, which essentially reinstated the Browning-Ferris's definition of "joint employer" to companies that have "indirect control" over workers. The board's inspector general questioned the validity of Hy-Brand because board member Bill Emanuel was a lawyer at Littler Mendelson P.C., the firm involved in the original Browning-Ferris case, leading to its rescission.

The employer community had hailed the Hy-Brand ruling as a pro-business victory until the board vacated its decision, creating massive uncertainty among business groups. While confusion continues regarding the future of Hy-Brand, rulemaking may be the Republican majority board's best option as far as attempts to overturn Browning-Ferris go.

In an email to HR Dive, Competitive Enterprise Institute labor policy expert Trey Kovacs praised the NLRB's latest move: "The NLRB’s announcement of a new joint employer rulemaking is a better, less politicized way than adjudication to deal with labor policies that impact businesses and jobs across the nation."

The NLRB tends to rely on adjudication to set policy, but the rulemaking process is certainly still open to the board. The process also provides a number of potential benefits to employers, including advance notice of changes and the opportunity to comment.