Time for a Rule: NLRB Considers Rulemaking on Joint Employer Standard
On May 9, 2018, the National Labor Relations Board (NLRB) announced that it is considering using its rulemaking process to establish the standard for determining joint employer status. Currently, uncertainty exists as to the proper test after the NLRB order vacating Hy-Brand Industrial Contractors, Ltd. In that case, the NLRB had returned to its decades-old “direct control” standard, reversing the expansive “indirect control” standard adopted by the Obama-era NLRB. Resolving that uncertainty through rulemaking, as opposed to deciding the issue in a case when it arises, would be a quicker way to provide clarity on the joint employer issue.