NLRB under pressure in presidential election year

The current National Labor Relations Board (NLRB) under President Joe Biden has been heavily involved in moving forward the administration’s prolabor goals. But as the Biden administration draws to a close, the Board faces a series of challenges.

Board abandons joint employer reg

The NLRB’s expansive joint employer rule, issued in October 2023, faces an uncertain future. The rule, which could have found joint employment when one putative employer had only an unexercised right to oversee some part of the work, was successfully challenged in a Texas district court. The Board promptly filed an appeal to the U.S. 5th Circuit Court of Appeals. Then came the Supreme Court’s Loper Bright decision dispensing with judicial deference to agencies. Almost immediately, the Board withdrew its appeal without explanation. The extant rule, requiring indicia of direct control to establish joint employment, remains in force. But the Board’s joint employer rule may not be dead.

A case pending before the NLRB—Cognizant and Google—could establish by Board decision the joint employee standards it abandoned in its regulation. If it did so, the NLRB would then have to explain why a court should accept an administrative ruling based on regulatory criteria already rejected by a court and abandoned by the Board. This is a daunting prospect.

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