If you have followed our blog over the past year, you are aware of the long and tortured history of the National Labor Relations Board’s joint employer standard. The recent history starts with the Obama Board’s decision to overturn decades of case law. But the saga continued.
Just last month, we reported on the Trump Board’s proposal to promulgate regulations adopting a joint employer standard. According to the Board, issuing regulations will clear up the uncertainty currently surrounding the standard that was created by years of case law. Those who have been following this matter might view the Board’s proposed rulemaking as a welcome opportunity for clarity on an issue that has vexed employers and unions alike in recent years.
But not everyone was pleased by the Board’s announcement. In a joint letter to Trump-appointed Board Chairman John Ring, United States Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders questioned the Board’s ability to remain independent on the issue given its overturned decision in Hy-Brand (in February 2018, the Board reversed its own ruling after its Ethics Officials determined that one of the Board Members should have been disqualified from participating in the case due to a conflict of interest). Essentially, Senators Warren, Gillibrand, and Sanders accused the Board of using rulemaking to reinstate the Hy-Brand decision. In other words, they believe that the Board has already decided on the final rule to be issued based on personal bias and without regard for the notice-and-comment process. Serious allegations, to be sure.
Earlier this week, Chairman Ring responded to the Senators with a letter of his own. The Chairman explained, in no uncertain terms, that a majority of the Board will engage in rulemaking on the joint employer issue and that it intends to issue a notice of proposed rulemaking sometime this summer. He reminded the Senators that all Board Members, both past and present, have personal opinions formed by years of experience. After assuring the Senators that the Board has not pre-determined the final joint employer rule, Chairman Ring also pointed out that the courts have held that personal opinions do not render Members incapable of engaging in rulemaking unless it can be shown that their mind is “unalterably closed” on the issue.
If we’ve learned anything from this dust-up between the Senators and the Board, it’s that the Board will proceed with rulemaking on the joint employer standard, and that accusations of bias from U.S. Senators will not stop it from doing so. As we said last time – stay tuned. More news is coming, and soon.