National Labor Relations Board Chairman John Ring recently sent a letter to several Senators announcing that the NLRB will begin the rulemaking process on the joint employment standard by this summer.
Responding to a letter from Senators Elizabeth Warren (D-MA), Bernard Sanders (I-VT), and Kirsten Gillibrand (D-N.Y.), Chairman Ring said that internal preparations are underway at the agency to begin the administrative rule-making process and that the agency plans to issue a notice of proposed rule-making by “as soon as possible, but certainly by this summer.”
The rulemaking process “will permit the Board to consider and address the issues in a comprehensive manner and to provide the greatest guidance,” Chairman Ring said.
“Whatever standard the Board ultimately adopts at the conclusion of the rule-making process, my hope is that the final rule will bring far greater certainty and stability to this key area of labor law," NLRB Chairman Ring wrote. Ring admitted that he had personal opinions on the joint employer standard, but vowed to keep an open mind.
In laying out his arguments in support of the rulemaking process, which is rare at the NLRB, Ring said a rulemaking on the joint-employer standard 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."
NLRB Chairman Ring further stated that whereas standards adopted through case adjudication may apply either retroactively or prospectively, final rules issued through notice-and-comment rulemaking are required by law to apply prospectively only. Therefore, by establishing the standard for determining joint-employer status through rulemaking, the Board immediately frees its stakeholders from any concern that actions they take today may wind up being evaluated under a new legal standard announced months or years from now.
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