There was no post last week because I was on vacation. We went to Lake Michigan for a week of lakeside R&R, which was terrific and relaxing. I mostly unplugged, read books having nothing to do with lawyering, and went on two long beach runs (memo to the autocorrect gods: not Long Beach (CA) runs).
The only sad part was that blog mascot and loyal friend Zippy passed away after 16 years of labradoodling. She had been fighting dementia and cancer, which is not a winning combination. The only positive was that the whole family was together, and the kids got to see her one last time.
You may remember Zippy from such blog lists as Face It: The New DOL Independent Contractor Rule Faces Court Challenges; and How to Support Prong C of the ABC Test, and Why You Can’t Lie Down When Faced with an Audit; and Get Aligned on Commissions: Ten Tips for Using Independent Contractor Sales Reps.
Now that I’ve got that out of the way, and now that we’re back home, the refrigerator is empty and so it’s time to go shopping.
The NLRB is going shopping too, despite what you may have read elsewhere.
On July 19, the NLRB submitted a motion to voluntarily dismiss its appeal in the Fifth Circuit. The NLRB had filed this appeal after a district court judge in Texas invalidated the NLRB’s 2023 joint employer rule. The effect of that ruling was to reinstate the 2020 rule, which makes it difficult to find joint employment under the NLRA.
So the 2023 rule is dead, right? That’s what I’ve been reading. The NLRB must be hanging its head and admitting defeat, right?
I’m not so sure that’s what the NLRB is doing. You see, there is another set of appellate challenges to the 2023 joint employer rule pending in the District of Columbia Court of Appeals. The D.C Court of Appeals is viewed as a more favorable venue for the NLRB to litigate than the more conservative Fifth Circuit.
In June, the D.C. Circuit ruled that it would hold its case in abeyance until the Fifth Circuit ruled, handing a win to business groups fighting the rule, since employers would rather have this issue decided in the Fifth Circuit.
By withdrawing its Fifth Circuit appeal, the NLRB ensures that the dispute will shift back to the D.C. Circuit. Presumably, the D.C. Circuit will reopen its case and consider whether the new joint employer rule can survive.
So when the NLRB withdrew its appeal in the Fifth Circuit, I don’t think that means the Board is giving up the fight. I think they might just be going shopping for a more favorable venue.
I could be wrong. In its Motion for Voluntary Dismissal, the NLRB writes that it “would like the opportunity to further consider the issues identified in the district court’s opinion” and that it seeks dismissal “to allow it to consider options for addressing the outstanding joint employer matters before it.”
I think that means judge shopping, not quitting. We’ll see what happens in the D.C. Circuit.
© 2024 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.
