“What? Over? Did you say “over”? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!” —Bluto
The Republican-majority NLRB has been trying to figure out how to overturn the Browning-Ferris joint employment standard without running into conflicts of interest. It tried in December 2017, when it set a new test in Hy-Brand, but then backed off a few months later after allegations that Member Emanuel had a conflict of interest and should not have participated. The Browning-Ferris test went back into effect.
Two members of the Board come from large law firms and may face allegations of conflicts of interest if they vote to overturn Browning-Ferris.
But did you say it’s over? Nothing is over until we decide it is!
The Board announced last week that it is not giving up. Instead, it is planning a new way for changing the joint employment test. This plan, if successful, may mean a new test that is not subject to flip-flopping every time the NLRB majority flip-flops between Ds and Rs (as it does whenever there’s a new President from the other party.)
The new plan involves crafting a rule through the administrative rulemaking process. Sounds boring (and it is). The tedious rulemaking process includes issuing a public notice of the proposed new rule and a comment period. Then, the Board gets to ignore any negative comments and adopt the rule.
The process takes time, but like a tiny water bacterium with a funny name, the new rule would be sticky.
From livescience.com: The tiny water bacterium Caulobacter crescentus secretes a sugary substance so sticky that just a tiny bit could withstand the pull from lifting several cars at once. With an adhesive force of nearly five tons per square inch, this “glue” is one of nature’s strongest.
The new rule would actually go in the books as a regulation, which future Board members would be obligated to follow.
It’s a sound strategy if it works.
The new rule would presumably resemble the rule the Board tries to enact in the Hy-Brand decision, which makes it much harder to show that a business is a joint employer. The new test presumably would require “joint control over essential employment terms” and would require control that is “direct and immediate,” not “limited and routine.”
For businesses that use other vendors’ workers (such as staffing agencies) and face the risk of being named a joint employer, this is an important development. Keep an eye on this one.
© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.