NLRB joint employer issue may go to rulemaking

Really, what's next? The NLRB is now considering using its rulemaking authority to address the standard for determining joint employer status under the National Labor Relations Act. [Press release] Meanwhile, there's a minor Twitter war between Chairman Ring, Member Lauren McFerran, and Member Mark Gaston Pearce. What is this? Junior High School?

My guess is that the Board majority has been looking for a case in which neither Chairman Ring nor Member Emanuel has a conflict of interest – a tough job because they both came out of a huge law firms that represent parties in Board cases.

So the Board is considering using rulemaking. That's typically a much slower process than deciding an actual case, but in today's climate it might be faster.

In December 2017 the Board decided Hy-Brand Industrial Contractors, Ltd. (Hy-Brand I), 365 NLRB No. 156 (2017) [PDF], which overruled Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). This changed the rules for determining when a company is considered a "joint employer." Hy-Brand I adopted a "direct control" test rather than Browning-Ferris' "indirect control" test.

Then in February three Members (not including William Emanuel) vacated Hy-Brand I, having decided that Emanuel ought not to have participated. Hy-Brand Industrial Contractors, Ltd. (Hy-Brand II), 366 NLRB No. 26 (2018) [PDF]. It's pretty clear that Emanuel was blind-sided by this action.

I think the handwriting on the wall is pretty clear. Right now the Browning-Ferris standard prevails. Just as quickly as the Board majority can get it done (either through rulemaking or by deciding a case), they will adopt the standard articulated in Hy-Brand I.