The NLRB’s Joint Employer Rule Saga Continues

In the latest developments in the seemingly never-ending NLRB joint employer saga, President Biden vetoed a Congressional bid to rescind the joint employer rule while the Board appealed a federal judge’s ruling blocking the same. The President’s veto and the Board’s appeal bring the joint employer rule back from the dead yet again, but absent a successful appeal, the rule remains blocked in court.

Biden blocks CRA: Last month, Congressional Republicans in the House and Senate (joined by a pair of Democratic Senators) approved a Congressional Review Act resolution to rescind the Board’s joint employer rule. Last week, President Biden vetoed the resolution. The veto ends the Congressional bid to block the rule – a subsequent effort by Republicans to override the veto fell short by dozens of votes.  

Board appeals court decision to block the rule: Nearly two months after a judge permanently blocked the joint employer rule, the Board filed an appeal this week to overturn the decision. The case will go to the Fifth Circuit Court of Appeals, which has historically looked unfavorably on agency regulations. However, the Board may try to move the case to the D.C. Circuit – where another legal challenge to the rule is already pending – which may be more sympathetic to NLRB interests. 

Outlook: Until a subsequent court decision on the appeal – likely months away – the Board’s joint employer rule remains blocked. A decision reinstating the rule from the Fifth Circuit is somewhat unlikely.

Read more: 

• NLRB Final Joint Employer Rule Overview.
• On the CRA and other legal developments.