On Dec. 7, 老牛影视submitted comments to the National Labor Relations Board urging the board to withdraw the new and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status. In the comments, 老牛影视argued that the new proposed rule will cause great confusion and uncertainty among construction contractors, specifically small business owners. More than 11,000 comments were submitted to the docket.

老牛影视explains in the comments that the board鈥檚 radical proposal dramatically expands the joint-employer standard beyond the limits of the common law. 鈥淭he board鈥檚 new proposal greatly expands joint-employer liability by restoring鈥攁nd then exceeding鈥攖he Browning-Ferris Industries standard, which deems two entities joint employers based on the mere existence of reserved joint control, indirect control or control that was limited and routine,鈥� 老牛影视stated.

Further, the comments state, 鈥淭he proposed rule goes even further than the BFI case by making clear that indirect or reserved control standing alone may be sufficient to prove joint-employer status. As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule 鈥榳ould not merely return the Board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.鈥欌��

础叠颁鈥檚 comments also made the following arguments:

• The proposal will disrupt long-established operational methods by which construction service providers work together to build America;
• The proposed rule, if implemented, would violate the Administrative Procedure Act;
• The proposed rule will harm the collective bargaining process in the construction industry;
• The proposed rule violates the 鈥渕ajor case鈥� doctrine and constitutionally required separation of powers;
• The proposed rule will harm small businesses in the construction industry; and
• The absence of clear guidance in the proposed rule will cause great confusion and uncertainty for construction contractors.

老牛影视also joined the submitted by the ABC-led Coalition for a Democratic Workplace.

Background on the new proposed NLRB rule:

On Sept. 6, 2022, the NLRB听听a听new joint employer proposal, which听would rescind and replace the ABC-supported 2020听.

老牛影视issued the following听statement听on the new proposed rule on Sept. 6:

鈥淚t is unfortunate that the Biden NLRB took an ax to the听ABC-supported听2020听NLRB joint employer final rule, which provides clear criteria for companies to apply when determining status,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥淭oday we see that the partisan NLRB proposes to greatly expand joint-employer liability under the NLRA, which will cause confusion and impose unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.鈥�

老牛影视was a听of the expanded definition of joint employer that was created by the NLRB鈥檚 2015听Browning-Ferris Industries听decision, and has听supported听legal and legislative efforts to restore the standard that was in place for more than 30 years.

On Sept. 29, 老牛影视joined the听and several other organizations in听听the NLRB to extend the comment period to Jan. 6, stating, 鈥淕iven the expansive nature of the proposed standard and the complexity of issues relating the standard鈥檚 impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.鈥�

On Oct. 14, the NLRB announced it was extending the comment deadline from Nov. 7 to Dec. 7 in order to allow sufficient time for parties to file initial comments.

On Oct. 20, 老牛影视participated in the U.S. Small Business Administration鈥檚 Office of Advocacy virtual roundtable on the proposed rule.听老牛影视expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners.

The ABC-led听听created a听听to tell the NLRB to abandon its radical joint employer proposed rule. The toolkit provided an explanation of the rulemaking and a听听to the NLRB explaining why the new joint employer standard would be disastrous.

In 2019, ABC听听in support of the Trump-era NLRB鈥檚 proposed rule, as did the听.

To learn more about the new NLRB proposal, read 老牛影视general counsel Littler鈥檚 analysis,听.