Dive brief:
- The National Labor Relations Board voluntarily dismissed Friday its appeal of a Texas federal judge’s decision enjoining its joint employer final rule.
- In a July 19 court filing for the case, NLRB v. Chamber of Commercethe Board said it would “like to have the opportunity to further consider the issues identified in the district court’s opinion” and that the dismissal would allow it to consider options for addressing the outstanding joint employer matters before it “.
- NLRB appealed the judge’s order in may The Board said Friday that it “remains of the view” that the joint employer rule is lawful. He noted that a separate lawsuit targeting his rule has been put on hold by the US Circuit Court of Appeals for the District of Columbia.
Diving knowledge:
Employers are once again getting an update on the NLRB’s nearly decade-long joint employer saga with more apparently on the way, depending on federal court decisions.
The 2023 Joint Company Final Rule, effectively blocked by the Texas district court decision, would have changed the NLRB’s interpretation of the National Labor Relations Act’s joint employer standards, specifying that an entity can be considered a joint venture of employees of a other employer if the two share or codify the essential terms and conditions. of employment According to the rule, entities would be considered co-entrepreneurs if they own or exercise direct or indirect control over one or more essential terms and conditions of employment.
The 2023 rule essentially reinstated a standard, known as the Browning-Ferris standard, that had originally been articulated by the Obama-era NLRB in 2015. decision in Browning-Ferris Industries.
In 2020, the Trump-era NLRB issues joint employer final rule that overturned Browning-Ferris and clarified that an entity can only be considered a co-employer if it possesses and exercises substantial, direct and immediate control over the essential conditions of employment of an employee. The 2023 rule was intended to remove and replace the 2020 rule.
“We are pleased that the Board has decided to withdraw its appeal of the court’s decision and that the court’s decision to block the NLRB’s radical and overbroad joint employer standard is now final,” Ben Brubeck, vice chair of Regulatory, Labor and State Affairs for the NLRB. Builders and associated contractorsone of the challengers to the 2023 rule, said in a press release Friday.
Meanwhile, the Service Employees International Union has filed two relevant challenges to the NLRB’s joint employer rulemaking.
The first is a 2021 Lawsuit Against Trump-Era Board in which the SEIU asserted that the 2020 NLRB Joint Employer Rule did not properly include employers with an unexercised right to control essential terms and conditions of employment and did not include health and safety concerns in that list of terms and conditions. This litigation is currently suspended.
the second, presented in 2023, asked the United States Court of Appeals for the District of Columbia Circuit to determine whether the current Board erred in failing to include all mandatory subjects of collective bargaining under its definition of the terms and essential conditions. This case has been put on hold by the DC Circuit.
The NLRB referenced the two SEIU cases in its July 19 filing, saying it was “very interested in receiving wisdom from various courts to help resolve the complex issues underlying these regulations.” The Board also said it “has several rulemaking requests on its docket regarding the joint employer issue that raise similar issues.”
Management attorneys who spoke to HR Dive after the Texas federal judge ordered its most recent joint employer rule noted that the Board could engage in additional rulemaking on the topic or return to a case-based decision approach to review the employer’s joint issues.
