Employment Law Daily NLRB Chairman Ring gives his take on latest Browning-Ferris joint employer ruling
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Tuesday, January 22, 2019

NLRB Chairman Ring gives his take on latest Browning-Ferris joint employer ruling

By Lisa Milam, J.D. and Pamela Wolf, J.D.

On January 17, the same day that National Labor Relations Board Chairman John F. Ring released a letter responding to lawmakers’ criticisms of the Board’s proposed joint-employer rule and providing his take on the D.C. Circuit’s recent ruling in Browning-Ferris, the Board also issued a notice providing an email address at which comments on the proposal may be submitted as an alternative to the usual method.

Comments by email. The Board provided the email address in response to the partial government shutdown and subsequent closure of Regulations.gov, the Board said. But a notice indicating that the website had been closed due to the shutdown was apparently in error, according to media reports. In any event, the website is now up and running.

D.C. Circuit ruling. The Board recently extended the comment period on the proposed rule in light of a divided D.C. Circuit opinion that upheld the Browning-Ferris joint-employer standard, particularly the consideration of a putative joint employer’s reserved right to control the workers in question, and the indirect control it exercises over those workers, as key factors to determine joint-employer status. These factors are rooted in the common-law definition of “employer,” the appeals court said, affirming the Board’s 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.”

However, because the NLRB did not sufficiently articulate “the scope of the indirect-control element’s operation,” the appeals court remanded the case so that the Board could more fully flesh out this aspect of its joint-employer analysis.

Ring’s take on the ruling. On January 17, Chairman Ring sent a letter to Robert C. “Bobby” Scott (D-Va.) and Rosa DeLauro (D-Ct.), the Democratic leadership of the House Education and Labor Committee, which lays out his take on this latest Browning-Ferris ruling in the D.C. Circuit. “With regard to the D.C. Circuit’s recent decision, the case has been widely reported inaccurately,” Ring told Scott DeLauro.

He was responding to their January 8, 2019, letter urging the NLRB to withdraw its joint-employer rulemaking and to “abide by its current joint employer standard articulated in Browning-Ferris,” which the circuit court had just upheld. However, Ring noted that the appeals court had denied enforcement and had “expressly disapproved of the Board’s application” of the indirect control test due to the Board’s failure, in Browning-Ferris, to provide a “blueprint for what counts as ‘indirect control.’”

It’s the lack of clarity? “The court’s criticism of Browning-Ferris is unsurprising, and the noted lack of clarity is precisely why the NLRB initiated rulemaking on the joint-employer standard,” Ring wrote. Nothing about the decision “foreclose[d]” the Board from undertaking rulemaking or required withdrawal of the NPRM, he added.

Also, citing the Board’s longstanding position of non-acquiescence, Ring stressed that the Board was “not compelled to adopt the court’s position as its own, in either Browning-Ferris itself or the final rule on joint-employer status.” Moreover, he added, the D.C. Circuit recognized that the Board’s NPRM and its decision in Browning-Ferris v. NLRB “are not incompatible,” and that the proposed rule “appears to overlap with the court’s position on indirect control in certain respects.”

At any rate, Ring pointed out, the appeals court handed down its ruling “notwithstanding the pending rulemaking,” and viewed its decision as responsive to “a request for judicial guidance in the rulemaking itself,” clearly not to preclude the NPRM.

“Certainty, predictability, stability.” “For all these reasons, a majority of the Board continues to believe that notice-and-comment rulemaking offers the best vehicle to address the uncertainty surrounding the joint-employer standard,” Ring concluded. “I can assure you that whatever standard the Board ultimately adopts at the conclusion of the rulemaking process, it will bring far greater certainty, predictability and stability to this key area of labor law, consistent with congressional intent. A majority of the Board believes we owe no less to the American public.”

Comment website open. The Regulations.gov website was fully functioning on January 18, however, and continues to be. Presumably, until the Board says otherwise, the public may still submit comments electronically to [email protected]. In addition to emailing comments to [email protected], comments can also be submitted by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Comments must be received on or before January 28, 2019. Comments in reply must be received by the NLRB on or before February 11, 2019.

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