House approves resolution that would repeal NLRB’s ‘joint employer’ rule

Washington — The House has passed a Congressional Review Act resolution intended to nullify the National Labor Relations Board’s recent rule revising the definition of “joint employer.” 

The resolution (H.J. Res. 98) is unlikely to advance further, however, as it would need Senate approval and President Joe Biden’s signature (or a two-thirds vote of both chambers of Congress to override a veto). 

Eight House Democrats joined 198 Republicans to approve the resolution on Jan. 12, while 177 Democrats voted against it and 50 legislators didn’t vote. 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. 

NLRB’s change to its definition of a “joint employer” on Oct. 27 was its second in less than four years.

The final rule restores the board’s 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.

The rule is set to go into effect Feb. 26.

In 2017, NLRB, under Republican control, went back to its joint-employer test from the 1980s and overruled a 2015 decision from the board. In 2020, NLRB put forth a regulation using that stricter test for joint employers.

The 1980s-era NLRB required that joint employers “(1) ‘actually’ exercise control, (2) that such control be ‘direct and immediate,’ and (3) that such control not be ‘limited and routine.’”

Rep. Virginia Foxx (R-NC), chair of the House Education and the Workforce Committee, said Jan. 12 on the House floor that “at its most basic level, a joint-employer standard should ensure that the entity calling the shots in the workplace is legally liable. That’s why it’s important to get this right.”

She added: “Under the Trump National Labor Relations Board rule, it was right. The Trump NLRB made sure that clear criteria were met before an employer was deemed legally liable for an individual’s employment conditions. The Biden NLRB upended this easy-to-understand joint-employer standard that promoted economic growth and job creation.”

Rep. Bobby Scott (D-VA), ranking member of the committee, said the resolution “would undermine workers’ ability to exercise their rights and reinstate the deficient Trump-era rule that narrowed the joint-employer standard.”

He continued: “Under the Trump-era standard, employers who control the working conditions could easily evade their obligations to collectively bargain with employees. And we should not go backward. The Biden-Harris administration’s joint-employer rule empowers workers and protects small businesses.”