NLRB Signals Shift in Joint Employment Rule, Misclassification Rules


By Liz Carey

Washington, D.C. ( – Newly installed National Labor Relations Board (NLRB) General Counsel Peter Robb sent a memo to employees of the board that seems to signal a reversal in the previous administration’s stance on joint employment and other policy shifts.

Robb took over as general counsel in November, after his predecessor’s term expired.

In the memo, Robb directed regional offices to send him any cases over the past eight years that that involve issues on which the NLRB overruled precedent, and cases that involved one or more dissents from the board.

The memo cited joint employment issues as an example of the kinds of cases he was interested in. Specifically, he asked for cases where the board found joint employer status was based on evidence of “indirect or potential control over the working conditions of another employer’s employees.”   

Attorneys at Jackson Lewis said the memo signaled that Robb will ask the board to overturn previous administration policies.

“Robb signals that he will ask the NLRB to overturn numerous hot-button Obama-era Board precedents,” the firm said in a statement. “Indeed, his Memorandum identifies 26 examples of Obama-era decisions that ‘might support issuance of complaint [under current Board law] but where [his office] also might want to provide the Board with an alternative analysis.’”

Howard Bloom, with Jackson Lewis, said the memo only indicates that Robb is likely to take those arguments to the NLRB, and that the initiatives Robb seems to be headed toward only impact issues that come before the board, such as violations regarding forming a union, not labor issues in general. 

“Only the NLRB can change the law,” Bloom said in an interview with “What he seems to be saying is ‘I want that case referred directly to me because I may want to use it to make an argument to the NLRB that they should change the law.’”

In an email to, the Office of Congressional and Public Affairs said it had no comment on Robb’s memo.

Currently, the board consists of a 3-2 split of Republicans and Democrats. However, board chair Philip Miscimarra’s term expires this month. Miscimarra has said he will not seek a second term. Unless President Trump can get the Senate to confirm a replacement, Miscimarra’s departure would leave the board with a 2-2 split.

Additionally, Robb nullified a previous administration initiative that found that an employer’s misclassification of employees as independent contractors, in and of itself violates the law, in respect to labor relations.

The memo is widely seen as a boon for employers and a holiday treat for labor lawyers.

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