The National Labor Relations Board (NLRB) is poised to become significantly more employer-friendly with President Trump's nomination and expected nomination of two Republicans to fill empty seats on the NLRB. Last month, President Trump nominated attorney Marvin Kaplan, who currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee, to fill one of two vacancies on the NLRB. Then Trump nominated William Emanuel, a Littler Mendelson attorney and member of the conservative Federalist Society, to fill the second vacancy. If confirmed, Kaplan and Emanuel would join Trump-appointed Republican board member Philip Miscimarra and give the NLRB its first Republican majority since 2008.

Changes Thus Far Under the Current Administration

The Trump administration has already withdrawn several employee-friendly, Obama-era regulations, including, most recently, two administrative interpretations enacted in 2015 and 2016 aimed at curbing the misclassification of employees as independent contractors and expanding the joint employer doctrine. The 2015 interpretation provided that an “economic realities” test should be used to determine whether a worker is a contractor or employee, rather than the degree of control test formerly applied, and signaled the agency's harsh stance against employee misclassification as well as its position that “most workers are employees under the Fair Labor Standards Act (FLSA).” The 2016 interpretation expanded the joint employer doctrine by making it possible for an employer who does not exercise direct control over a worker to be liable for wage and hour violations under the FLSA.

The withdrawal of the 2016 interpretation marks the agency's return to the more traditional “direct control” standard used to determine whether an employer is a joint employer, based on whether the employer has actual control over the worker. Thus, the administration has already demonstrated that it is taking a less aggressive approach and is less likely to go after traditional business relationships, including franchisee/franchisor, contractor/subcontractor and outsourcing relationships.