By Sharon Gold
The National Labor Relations Board (“NLRB”) recently proposed a rule establishing the standard for determining joint employer status under the National Labor Relations Act. Employers have until November 13, 2018 to comment about the proposed rule. The proposed rule, commentary and instructions on commenting are available here.
There have been several changes to the definition over the past few years, which has caused uncertainty for employers. The proposed rule states that employers are joint employers “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” Proposed Rule Part 103.40. “A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.”
The Proposed Rule provides 12 examples of the meaning of the rule. The standard is a return to the pre-Browning-Ferris definition of joint employer that makes it more difficult to find a joint employer relationship.
Among other impacts, the definition of joint employer has direct effects on whether an employer may be jointly and severally liable for unfair labor practices of another employer and whether the NLRB may compel an employer to bargain in good faith with a bargaining representative of another employer.