Washington — The National Labor Relations Board has withdrawn its appeal of a federal court decision that blocked the board’s joint employer rule.
“The board remains of the opinion that its 2023 rule meets the procedural and substantive requirements of the Administrative Procedure Act (of 1946) and the National Labor Relations Act (of 1935),” a July 19 submitting states. “Given the litigation posture of the rule, nevertheless, the board would love the chance to additional contemplate the problems recognized within the district court’s opinion within the first occasion.
“In addition to the district court opinion, the board has several rulemaking petitions on its docket regarding the joint employer issue raising similar issues.”
The joint employer rule from 2020 will stay in impact. Under the rule, NLRB requires that joint employers “(1) ‘actually’ exercise control, (2) that such control be ‘direct and immediate,’ and (3) that such control not be ‘limited and routine.’”
This previous October, NLRB sought to overturn that 2020 rule and return to a earlier definition of a joint employer: when two or extra entities “share or codetermine” a number of of an worker’s important phrases and situations of employment. Those “essential terms and conditions” embrace duty for employee security and well being. Others:
- Wages, advantages and different compensation
- Hours of work and scheduling
- Assignment of duties to be carried out
- Supervision of the efficiency of duties
- Work guidelines and instructions governing the way, means and strategies of the efficiency of duties and the grounds for self-discipline
- Tenure of employment, together with hiring and discharge
In a March 8 ruling, Judge J. Campbell Barker from the U.S. District Court for the Eastern District of Texas said the NLRB rule “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly, at least one of the specified ‘essential terms and conditions of employment.’”
In May, NLRB filed an appeal of that decision and sought to have a venue change to the U.S. Court of Appeals.
“This is a major legal victory and an important acknowledgment by the NLRB,” the U.S. Chamber of Commerce, which filed the lawsuit in opposition to the rule, says in a July 19 press launch. “The agency’s joint employer rule overstepped its constitutional and statutory authority with this unlawful rule.”
