Joint employer rule could ride again (Shenanigans at the NRLB). It is ugly, and it is involved. So here goes…. 

In 2015, wanting to unionize workers in 3PL and fast food industries, the National Labor Relations Board (NLRB) overturned 30 years' of law to declare that businesses are responsible for their contractors’ employees.

In 2017, this was overturned.

Sen. Elizabeth Warren asked that the overturn be overturned because one of the NLRB commissioner’s law firms had worked for the plaintiff. However, he had not personally had any contact with them. Federal guidelines say this is not a conflict.

In 2019-2020, the NLRB put new rules in place that require the joint employer to have “direct and immediate control” over the contractor.

In 2021, a union – the SEIU, wants to overturn the rules, and, by coincidence, 2 of the latest administration appointees that will decide the case for the NLRB were on the payroll of the SEIU. Neither has recused him or herself. Their position – they worked at the local union level, and the national union was the appellant. As the Wall Street Journal asks, “Where is Sen. Warren now?”

The Joint employer rule needs to be reasonable and moderated; otherwise, it will be costly for several companies.