Letters
| December 7, 2022

Coalition Comments to the National Labor Relations Board's Proposed Rulemaking on "Standard for Determining Joint-Employer Status"

The Coalition for a Democratic Workplace (“Coalition”) responds to the National Labor Relations Board’s (“Board”) Notice of Proposed Rulemaking (“NPRM”) on “Standard for Determining Joint-Employer Status.”  This proposed rule has problems – a lot of problems.  Respectfully, the Board should start over or leave the current standard in place. The proposed rule purports to be grounded in common law agency principles but instead presents an illdefined standard for joint employer liability that sinks to the level of an arbitrary and capricious agency action.  One example among several is the rule’s broad-brush treatment of the requisite level of evidence necessary for an entity to become a joint employer.  Under the proposed rule as stated, one instance of exercise of control – whether direct or indirect – would create a joint employer relationship.   So, too, would one contract clause reserving control. Even considered alone, this sweeping evidentiary standard makes the proposed rule arbitrary and capricious.  If Congress had wanted to create a system where the quantum of evidence for becoming an employer was “any evidence more than zero,” Congress would have clearly said so in the National Labor Relations Act (“NLRA”).