The NLRB released a proposed rule to roll back the Board’s Obama-era Browning-Ferris decision from 2015, which establishes a strict joint employer test. Browning-Ferris held that a company may be liable as a joint employer even where it only exercises “indirect control” over another company’s workers. The proposed rule sets forth a joint employer test that requires one company to control the “essential terms and conditions” of employees, such as hiring, firing, discipline, and supervision, and that requires “direct and immediate” control rather than “limited and routine” control. Management groups and a now-conservative Board have been working to reverse the ruling in recent years, including in a recent decision from December 2017, Hy-Brand Industrial Contractors Ltd., which was later pulled after ethics officials determined that Board member Bill Emanuel should not have participated in the case based on a conflict of interest. The Board rarely issues rules under the federal rulemaking process, which is described as “cumbersome” and “time-consuming;” however, a joint employer rule will be more difficult to overturn than a joint employer ruling by the Board.
Eight counties in New Mexico recently passed right-to-work ordinances, which provide that employees cannot be forced to pay dues or join a union in unincorporated areas of the counties. Right-to-work activists began passing local ordinances after State lawmakers repeatedly rejected proposed bans on union memberships. Unions have sued one county, alleging the New Mexico Legislature did not expressly allow approval of such ordinances. New Mexico’s ordinances are similar to local legislation recently passed in Kentucky and Illinois.