Attorney General James Leads Coalition Of 25 Attorneys General In Opposition To Proposed Rule Weakening Employee Protections

NLRB’s proposed rules would narrow definition of “joint employer,” make it harder to hold employers accountable for labor violations

NEW YORK – Today Attorney General Letitia James, together with Pennsylvania Attorney General Josh Shapiro, led a coalition of 25 state attorneys general in submitting a comment letter, to the National Labor Relations Board (NLRB) in opposition to the NLRB’s 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. The full letter is available here.

“The National Labor Relations Board is entrusted with protecting workers, not putting them in harm’s way,” said Attorney General Letitia James. “These proposed rules would limit legal protections for workers, compromise collective bargaining, and allow companies to potentially evade justice for labor violations. We must be doing all we can to protect workers’ rights, not deny them. My office will continue to vigorously defend New York’s workers.”

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 state 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 state attorneys general contend 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 state attorneys general raise questions about the integrity of this rulemaking, which attempts to push forward the same joint-employer standard adopted in an 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. 

Along with New York and Pennsylvania, today’s comment letter were filed by the Attorneys General of 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.