February 4, 2019
LANSING – Attorney General Dana Nessel has joined a coalition of 25 attorneys general led by New York Attorney General Letitia James and Pennsylvania Attorney General Josh Shapiro opposing the National Labor Relations Board’s (NLRB) proposal to unreasonably narrow its joint employer standard. The joint employer standard of the National Labor Relations Act (NLRA) governs the status and liability of an employer that shares control over the terms and conditions of workers’ employment with another employer, such as in a franchising or subcontracting relationship. Attorney General Nessel and her colleagues filed official comments today raising questions about the integrity of this rulemaking and concerns about the harm on workers and residents in their respective states. The full letter is available here.
“The hardworking men and women of Michigan deserve fair, transparent, predictable rules that aren’t jeopardized or arbitrarily changed because employers are skirting the system,” said Nessel.
The current joint employer standard under the NLRA was set forth by the NLRB in a 2015 decision, which concluded that a company is an employer if it possesses the right to control or actually exercises control, whether direct or indirect, over employees’ terms and conditions of employment. Just two weeks ago, the U.S. Court of Appeals for the District of Columbia affirmed this decision in Browning-Ferris Indus. v. NLRB, No. 16-1028, (D.C. Cir. Dec. 28, 2018).
By submitting the comment letter, the coalition of attorneys general – many of whom enforce various federal, state, and local labor and employment laws and have worked to hold joint employers accountable for violating those laws – voice their concerns on behalf of workers in their states to ensure that workers’ rights under the NLRA are vigorously protected. The comment letter contends that the Proposed Rule undermines the statutory purposes of the NLRA, will make enforcement of the NLRA more difficult, and raises serious concerns under the Administrative Procedure Act. In particular, the attorneys general raise questions about the integrity of this rulemaking, which attempts to push forward the same joint-employer standard adopted in a 2017 NLRB ruling that was later thrown out because of a potential conflict of interest by one of the deciding NLRB members – who also participated in this rulemaking.
Joining Attorney General Nessel in filing the comment letter are the Attorneys General of New York, Pennsylvania, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.