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January 11, 2019


NLRB’s Proposed Rules Would Narrow Definition of “Joint Employer,” Make it Harder to Hold Employers Accountable for Labor Violations

Chicago — Attorney General Lisa Madigan today joined a coalition of 11 attorneys general 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.

Madigan and the other attorneys general filed official comments 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.

“Strong protections are needed to ensure that employees have an appropriate redress when their rights are violated in the workplace, and the proposed rule falls short of that goal,” Madigan said. “I encourage the NLRB to abandon its current approach.”

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. 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, Madigan and the coalition of attorneys general – who enforce various federal, state, and local labor and employment laws and have worked to hold joint employers accountable for violating those laws – voiced 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, Madigan and 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 Madigan in filing the comment letter were the attorneys general of California, the District of Columbia, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Virginia, and Washington.


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