By Chelsea Gomez Caswell

In recent years, the National Labor Relations Board’s joint employer standard has been in a state of flux, making it hard (if not impossible) for employers to feel like they can get a handle on this important standard and plan/organize/prepare accordingly. This week, we have again seen movement from the NLRB on the issue.

On June 5th, Chairman John Ring issued a letter to several U.S. Senators concerning the NLRB’s announcement that it plans to go through the notice and comment rulemaking process to address the joint employer conundrum. That letter may be found here.  In his letter, Chairman Ring confirmed that the “NLRB is no longer merely considering joint-employer rulemaking” but that a “majority of the Board is committed to in rulemaking.” The NLRB is working to issue a Notice of Proposed Rulemaking as soon as possible, and indicated that it will certainly be issued by this summer. Chairman Ring opined that notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the joint employer standard ought to be, as compared to the NLRB’s traditional case-by-case adjudication. The letter stated that rulemaking is appropriate for the joint employer subject because it will allow the NLRB to consider the issue in a comprehensive manner and “will enable the Board to provide unions and employers greater ‘certainty beforehand as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’”

Consistent with the June 5th letter, the NLRB announced that it will not reconsider its order (Hy-Brand II) vacating the controversial ruling (Hy-Brand I) that most recently addressed the standard for joint employer status under the NLRA. Instead, the NLRB simultaneously released a separate decision and order, replacing Hy-Brand I, holding that Hy-Brand and Brandt were commonly owned and managed companies constituting a “single employer;” thereby avoiding the need to address Hy-Brand’s status as a joint employer. Therefore, the Hy-Brand I definition of joint employer (holding that businesses can be joint employers of a group of employees only if each has exercised direct and immediate control over those employee) will not be the NLRB’s controlling standard, at least for the time being. The NLRB’s full docket activity for the Hy-Brand proceedings may be found here.

So where do we stand until the NLRB completes the rulemaking process you ask? The Hy-Brand II decision to vacate Hy-Brand I effectively restored the NLRB’s 2015 decision in Browning Ferris Industries of California, Inc. which expanded the definition of joint employment beyond those employers that exercise direct control and authority over employees’ terms and conditions of employment to include employers that share indirect or potential control over a group of employees.

And now we wait for the completion of the rulemaking process to see where the pendulum will land—whether a Hy-Brand I or Browning Ferris type definition will carry the day.