The chairman of the National Labor Relations Board on Tuesday refuted claims by Democratic lawmakers that the board is attempting to evade ethical questions about its actions, while adding that the government’s main labor law enforcement agency expects to finish a proposed rule on the controversial joint employer doctrine by the end of the summer.
“Let me assure you that any notice-and-comment rulemaking undertaken by the NLRB will never be for the purpose of evading ethical restrictions. As you note, I said during my confirmation hearing that I would take my ethical obligations very seriously, and I do,” NLRB Chairman John Ring said in a letter Tuesday to Sens. Elizabeth Warren, D-Mass., Kirsten Gillibrand, D-N.Y., and Bernie Sanders, I-Vt.
Ring was responding to a letter sent by the three lawmakers May 29 expressing concern about the NLRB’s Republican-led majority decision to rewrite the joint employer doctrine. “While there is nothing inherently suspect about an agency proceeding by rulemaking, it is impossible to ignore the timing of this announcement, which comes just a few months after the board tried and failed to overturn (the rule), and appears designed to evade the ethical constraints that federal law imposes on members in adjudications,” the senators wrote.
“Joint employer” refers to when one employer can be held legally liable for workplace law violations at another company it does business with, such as a subcontractor. The board announced last month that it was reopening the rule to public comment.
The chairman said the board is required to engage in a rulemaking to clarify how the doctrine applies. He also indicated the board was already well into that process. “Candor requires me to inform you that the NLRB is no longer merely considering joint employer rulemaking. A majority of the board is committed to engage in rulemaking, and the NLRB will do so. Internal preparations are underway, and we are working toward issuance of a Notice of Proposed Rulemaking (NPRM) as soon as possible, but certainly by this summer,” he told the senators.
The joint employer issue has been complicated and contentious. In a 3-2 vote in December, it decided a major case called Hy-Brand that reversed a 2015 board decision, then under a Democrat-led majority, called Browning-Ferris. The 2015 ruling said companies can be held liable for workplace violations by another business when they have “indirect control” over that business’s workforce, a vague standard that alarmed business groups since it could be used to make franchiser companies, such as McDonald’s, responsible for its franchisees. The current Republican-led board overruled that in December’s Hy-Brand case, limiting liability to cases of “direct control,” which had been the standard for decades.
Business groups cheered the decision. However, in late February, the board vacated the ruling, following a report by the NLRB’s inspector general that board member William Emanuel had a conflict of interest in Hy-Brand involving his former law firm, Littler Mendelson. Emanuel has vigorously disputed the report, calling the inspector general’s reading of the ethics rules absurd. The inspector general inquiry was sparked by inquires made by the senators.
