Regulate With Prejudice? Joint Employer Issue Tests Board Process

The National Labor Relations Board’s surprise decision to tackle joint employer liability via regulation is raising questions about whether the board’s Republican majority already knows how it will resolve one of the biggest labor policy debates in recent years.

But that’s not likely to stop the board from using the rulemaking process to limit legal responsibility for businesses in franchise, staffing, and other contractual arrangements.

“Agencies are allowed to have opinions before they engage in rulemaking,” Aaron Saiger, who teaches administrative law at Fordham University, told Bloomberg Law. “That’s the whole process. Having an opinion is OK, it just has ...