NLRB in retreat, faces skeptical courts

The most recent Supreme Court term ended with several decisions that have potentially monumental implications for the future of the Administrative State (see “Supreme Court ends ‘Administrative State’”)—particularly for the National Labor Relations Board (NLRB).

Joint employer regulation withdrawn

In the wake of the Supreme Court’s decision ending Chevron deference, the NLRB withdrew its appeal of a lower court’s injunction of the agency’s joint employer regulation. The immediate effect of this surprising decision means that the existing employer-friendly joint employers standards—drafted during the Trump administration and a target of the Biden administration—remain in place. This unexpected retreat—involving a rare Board regulation—brings into question whether the Board itself is concerned that the end of Chevron will significantly affect its decision-based outcomes.

Most immediately, the Board’s Cognizant case hangs in the balance. There, the Board deemed a group of Cognizant contractors working for a Google subsidiary to be joint employees and eligible to form a union and bargain with Google. The NLRB reached that conclusion using the criteria later set out in the now-withdrawn regulation. Google has challenged the decision. The Board must determine whether to withdraw the case or explain why the criteria it backed away from are valid in an adjudication but not in a regulation. The degree of deference given to a Board ruling is in the offing—and at risk.