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NLRB appeals joint employer ruling to 5th Circuit

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The National Labor Relations Board will appeal a federal judge’s decision vacating its final rule to update joint employer regulations under the National Labor Relations Act, according to court documents filed Tuesday.

NLRB appealed to the 5th U.S. Circuit Court of Appeals, which has appellate jurisdiction over federal district courts in Texas.

The news comes less than a month after Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas vacated the board’s final rule. Business groups led by the U.S. Chamber of Commerce sued the NLRB seeking to block the rule, and Barker handed down the decision shortly before the rule was set to take effect in March.

In his March 8 decision, Barker held that final rule — under which an entity may be considered a joint employer of another employer’s employees if the two share or codetermine essential terms and conditions of employment — was “contrary to law” and “arbitrary and capricious,” in part because it removed a 2020 Trump era joint employer standard.

Aside from the Texas lawsuit, NLRB also faced criticism from Congress, which successfully passed a joint resolution under the Congressional Review Act to overturn the final rule. On Monday, President Joe Biden vetoed the resolution.

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