Lawmakers seek to repeal final rule on NLRB’s definition of ‘joint employer’

Washington — A bipartisan group of House and Senate lawmakers have introduced a joint Congressional Review Act resolution to repeal the National Labor Relations Board’s recently revised joint employer rule. 

The resolution, sponsored by five Republicans and one Democrat, will likely be dead on arrival in the Democrat-controlled Senate.

CRA resolutions, established as part of the Small Business Regulatory Enforcement Fairness Act of 1996, allow for the repeal of regulations within 60 legislative days of issuance. The act has been used successfully 20 times in 27 years. 

For the second time in less than four years, NLRB on Oct. 27 changed its definition of a “joint employer.”

In the final rule, NLRB says it’s restored its previous definition of a joint employer: when two or more entities “share or codetermine” one or more of an employee’s essential terms and conditions of employment. Those “essential terms and conditions” include worker safety and health. Others:

• Wages, benefits and other compensation
• Hours of work and scheduling
• Assignment of duties to be performed
• Supervision of the performance of duties
• Work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline
• Tenure of employment, including hiring and discharge

In a press release announcing the revised rule, NLRB Chair Lauren McFerran said the board will still determine on a case-by-case basis whether two or more employers meet the “joint employer” standard.