New NLRB Chairman John Ring has stated that the Board intends to use rulemaking to create a new joint employer standard.

The statement was in response to a May 29 letter from Democratic Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders that harshly questioned whether the agency planned to use rulemaking to create a new joint employer standard to evade ethical restrictions in deciding cases that come before the NLRB.

The Democratic Senators also accused Ring of being biased and that the rulemaking outcome was predetermined. The Senators requested the NLRB refrain from using the rulemaking process to change the current union-friendly joint employer standard. (For more on the current joint employer standard under Browning-Ferris Industries, 362 NLRB No. 186 (2015), see our post, Labor Board Considers Joint Employer Standard Rulemaking.)

In his June 5, 2018, response, Ring confirmed that the NLRB will engage in rulemaking to determine what the standard is for two entities to be deemed a joint employer under labor law. Ring stated that a Notice of Proposed Rulemaking (NPRM) would be issued by this summer.

Ring denied that there was any intent to evade ethical restrictions in using the notice-and-comment rulemaking process. He explained that the rulemaking process would allow the NLRB to consider all views on what the joint employer standard ought to be. He also explained that rulemaking will permit the Board to address the joint employer standard in a comprehensive manner that will provide greater guidance for all interested parties — employers, unions, and employees — than traditional case-by-case adjudication allows.

Ring concluded by pledging to keep an open mind and to consider all points of view received from interested parties during the rulemaking process. However, he also reminded the Senators that he has his own opinions on this issue based on his many years as a management-side labor lawyer, and he should not be expected to be devoid of opinions any more than some of the previous union-side NLRB members were when they embarked on rulemaking to change the NLRB’s representation-case procedures in 2011 and 2014. The rules ultimately resulted in shorter, union-friendly election procedures.

For now, the public will have to wait for the NPRM, affording the opportunity for public comment on a newly proposed rule. A majority of the five-member NLRB will need to approve the proposed rule, and any new joint employer standard would be applicable only prospectively after approval of a final rule.