Thursday, November 16, 2023: US NLRB Extended Effective Date of Joint-Employer Rule to February 26, 2024
GAO Report Found Previous Implementation Date Violated Congressional Review Act
The U.S. National Labor Relations Board (“NLRB”) announced that it extended the effective date – from December 26, 2023 to February 26, 2024 – of its finalized joint employer Rule. The Final Rule established a new, broader standard to determine whether two or more employers are joint employers of particular employees within the meaning of the National Labor Relations Act (“NLRA”). The new standard will only apply to cases filed after the Final Rule takes effect. We discussed the Final Rule, published in late October, in detail here.
The Board stated that it will publish a formal Notice of the extension in the Federal Register “shortly.” As of our WIR deadline, the Federal Register website has not indicated a publication date for this promised Notice.
Previous Implementation Date Violated the Congressional Review Act
According to the NLRB statement, the reason for the implementation delay is “to facilitate resolution of legal challenges with respect to the rule.” However, the Board failed to mention that on November 9, 2023, the U.S. Government Accountability Office (“GAO”) issued a Decision concluding that the original December 26, 2023, implementation date violated the Congressional Review Act (“CRA”). The GAO addressed this decision to the Chairs and Ranking Members of the Senate Health, Education, Labor, and Pensions (“HELP”) Committee and the House Education and the Workforce Committee.
Specifically, the GAO said that “[the CRA] requires a 60-day delay in the effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later.” (See 5 U.S.C. § 801(a)(3)(A). The Final Rule was published in the Federal Register on October 27, 2023. As we noted in our story last month detailing the Final Rule, the White House Office of Management and Budget classified this Final Rule as a major rule subject to Congressional review. The House of Representatives received the rule on October 27, 2023, and the Senate received the rule on October 30, 2023, the GAO noted. The previous December 26, 2023, effective date did not have the required 60-day delay, the GAO pointed out. Consequently, the previous December 26 implementation date did not comply with the required 60-day delay, the GAO decided.
Furthermore, the GAO decision stated that “[i]n its submission to us, the [NLRB] indicated that it did not prepare an analysis of costs and benefits for this final rule.”
Legislators Introduced Promised CRA Resolution to Overturn Final Rule
Also on November 16, Senator Bill Cassidy (R-LA), Ranking Member of the Senate HELP Committee, issued a statement noting the GAO decision. He also said that he, along with other legislators, introduced, on November 9, a CRA Resolution – S.J.Res.49 – to overturn the Final Rule. We noted in our story last month, that Senator Cassidy, along with Joe Manchin (D-WV), had on October 26, announced their plan to introduce this CRA Resolution.