NLRB defies court and Congress in joint employer rule battle

In a recent government meeting, discussions centered around the National Labor Relations Board's (NLRB) controversial joint employer final rule, which was issued in 2023. This rule has been criticized for shifting away from the traditional standard of direct and immediate control, leading to concerns about its expansive and vague nature, as well as its potential cost implications for businesses.

In March 2024, a federal district court ruled against the NLRB, stating that the agency had exceeded its authority with this rule. Following this decision, both the House and Senate passed a Congressional Review Act resolution aimed at nullifying the rule, reflecting a bipartisan disapproval of the NLRB's actions.

Despite these significant setbacks, the NLRB has chosen to appeal the court's ruling. This decision has raised questions about the agency's willingness to disregard both judicial and legislative opposition. A former NLRB chairman highlighted that such a bipartisan rejection, coupled with a court ruling against the rule, would typically be considered in the decision to pursue an appeal.

The former chairman also pointed out that a similar joint employer standard established during the Obama administration had been struck down by the DC Circuit multiple times, suggesting a pattern of judicial disapproval for expansive interpretations of joint employer status. He expressed confusion over the NLRB's persistence in advocating for this standard, emphasizing that his approach at the board was to adhere closely to the law as written by Congress and interpreted by the courts, a practice he feels is not being followed by the current board.