01.17.19

By: Ian Kullgren
Source: Politico

NLRB chairman answers Democrats’ criticism of joint-employer rule

National Labor Relations Board Chairman John Ring today addressed Democratic criticism of the board’s proposed joint employer rule.

House Education and Labor Chairman Bobby Scott (D-Va.) and Rep. Rosa DeLauro (D-Conn.) urged the Republican-controlled NLRB on Jan. 8 to keep the Obama-era Browning Ferris decision in place. The 2015 decision made it easier to hold businesses liable for labor violations committed by their franchisees and contractors. The NLRB‘s proposed rule would revert to an earlier standard more favorable to business.

Ring also disputed Democrats’ claim that a federal circuit court in December affirmed the Democratic board’s reasoning in Browning-Ferris.

“The joint-employer standard articulated by the board in Browning-Ferris was neither a clear standard nor was it affirmed by the D.C. Circuit,” Ring wrote. “In fact, the 2015 Browning-Ferris decision leaves much unresolved, as both that decision and the court point out.”

The court, in its Dec. 28 decision, approved “the board’s articulation of the joint-employer test as including consideration of both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment.” At the same time, the court said, the NLRB “did not confine its consideration of indirect control consistently with common-law limitations.”

The court specifically took issue with the NLRB‘s desire to use the same legal test for franchisees and independent contractors. “Using the independent-contractor test exclusively to answer the joint-employer question would be rather like using a hammer to drive in a screw: it only roughly assists the task because the hammer is designed for a different purpose,” the court wrote.

Ring told Scott and DeLauro that the rulemaking process “permits the board to address a wide range of hypothetical factual circumstances, furnishing all our stakeholders the guidance that the board's Browning-Ferris decision admittedly failed to provide.”