In a move that is likely to be strongly supported by the employer community, the National Labor Relations Board (NLRB or Board) has published a formal Notice of Proposed Rulemaking that would codify the test the Board traditionally used up until 2015 to determine whether two employers are acting jointly for purposes of triggering obligations and responsibilities under the National Labor Relations Act (NLRA).

The Board’s proposed action, which was approved by the three Republican Members appointed by President Trump with a strong dissent by the remaining Obama appointee, a Democrat, would in effect overturn a controversial joint employer test adopted in 2015 by the Obama-era NLRB that significantly expanded joint employer liability.

Notably, the Board is using its rarely-employed rulemaking authority in this instance, which – assuming the proposal is finalized at some point in the future – will make it more difficult for a future Board to reverse course.

The NLRB will be accepting public comments on its proposal until November 13, 2018.

Members of the Center for Workplace Compliance (CWC) can read more here.