New NLRB Nominations May Lead to New Joint Employment Test (or to my misuse of Lynyrd Skynyrd song lyrics)

IMG_1088In the Lynyrd Skynyrd song, “Gimme Three Steps,” we find our hero cutting a rug down at a place called The Jug with a girl named Linda Lou. This catchy song has nothing to do with labor law but does deal with someone who finds himself in a bad situation (shakin’ like a leaf on a tree!) and needs three steps to get out the back door.

Same thing here (in a sense). [C’mon, work with me here, I’m trying to make NLRB appointments interesting!]. When not posting tweets of himself pummeling a photoshopped CNN logo outside a WWE ring, President Trump found the time to make two important nominations to fill vacancies on the National Labor Relations Board (NLRB), giving companies two of the three steps needed to undo a long list of anti-business decisions from the past eight years.

The two new appointmnents, once confirmed, will shift the Board back to a 3-2 Republican majority, which should spell relief for businesses in several areas — including joint employment. (Two appointments = two steps. There’s a third step coming.  Wait for it….)

Nominee William Emanuel is a long-time employment defense lawyer who has made a career out of representing companies in labor disputes.

Nominee Marvin Kaplan is currently counsel to the Occupational Safety and Health Review Commission, an independent federal agency that rules on disputes over OSHA citations. He has served nearly a decade in various federal roles, including as Bush 43’s assistant secretary of labor for administration and management at the DOL.

Once confirmed, Emanuel and Kaplan will join current members Philip Miscimarra (R), Mark Gaston Pierce (D), and Lauren McFerran (D).

The rightward shift in the Board will likely bring relief to employers on a number of important labor issues, including the test for joint employment under the National Labor Relations Act (NLRA).

The Board’s landmark 2015 decision in Browning-Ferris (currently under appeal) redefined the test for joint employment, deeming workers to be joint employees under federal labor law even when a company exercises only minimal and indirect control over their working conditions. The reconstituted Board is likely to revert back to the prior joint employment standard, which required more direct control over how, when, and where work was performed before a company could be deemed a joint employer. (Of course, the D.C. Circuit Court of Appeals may take care of that itself by reversing the Browning-Ferris decision on appeal. A decision is expected before the end of the year.)

Meanwhile, one significant hurdle remains.  (As promised, loyal reader, here’s the third step.) The term of the NLRB’s General Counsel, Richard Griffin, does not expire until November 2017. As General Counsel, Griffin acts as the NLRB’s Chief Prosecutor. When his term expires, the appointment of a new General Counsel with a more pro-business outlook is expected.

The combination of two appointments to make a more pro-business Board, plus a more pro-business General Counsel, should finally bring relief to employers who have been battered by eight years of anti-business interpretations on issues like union elections, handbook policies, and social media. These rulings have been applied to union and non-union businesses, and so a more pro-business Board will be a welcome change to the business community.

Of course, it will take time for businesses to see the effects of a new Board and, later, a new General Counsel. The right cases and circumstances will need to arise, and then more pro-business interpretations can be issued. I blogged about this topic here a few few months ago, before we knew who the two new NLRB nominees would be. With the President’s two June 2017 nominations, we are two steps closer to these changes taking full effect.  (“That’s the break I was looking for.”)

Thank you, Ronnie Van Zant and Allen Collins, for helping me to try to make this blog post interesting and, most of all, for naming your band after a gym teacher.

© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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2 thoughts on “New NLRB Nominations May Lead to New Joint Employment Test (or to my misuse of Lynyrd Skynyrd song lyrics)

  1. Pingback: NLRB Nominees Hate Puppies & Rainbows, Dems Claim – Who Is My Employee?

  2. Pingback: Two Key Developments in Joint Employment are Expected This Week – Who Is My Employee?

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