Skip to main content

Happening Today: NLRB’s Joint Employer Rule Goes Into Effect


Today, the National Labor Relations Board’s (“NLRB”) final rule for joint employer status goes into effect after what many would call a prolonged process.

Readers might recall that for many years, the NLRB had determined whether an employer was a joint employer depending upon whether that company had direct control over the workers’ employment terms.  That joint employer standard got turned on its head with the 2015 Browning-Ferris decision which expanded the joint employer test to include both direct and indirect control over workers (even if that control was not exercised.)

When the NLRB took on a more conservative/employer friendly tilt after President Donald Trump came into office, the NLRB issued its 2017 Hy-Brand decision which attempted to undo the standard set in Browning-Ferris and revert back to direct control being the only qualifying factor to determine joint employer status.  However, as some might remember, the Hy-Brand decision was vacated not long after...which meant the Browning-Ferris direct and indirect control joint employer standard remained in place.

Fast forward a bit and the NLRB decided to use rulemaking to implement its preferred joint employer standard (rather than finding another case and issuing another decision.)  Under the final rule, a joint employer is now defined as an employer that codetermines another employer’s employees’ essential terms and conditions of employment.  Employers “share or codetermine” these terms and conditions of employment where they possess and exercise substantial direct and immediate control over one or more essential terms or conditions of employment that meaningfully affect matters relating to the employment relationship.

Unlike the Browning-Ferris standard, evidence of indirect control and unexercised authority over the essential terms and conditions of employment has no impact on this new joint employer standard.  As well, it is worth noting that the party that is asserting joint employer status now bears the burden of proof.

One final note:  The NLRB’s joint employer standard only applies to joint employer liability under the National Labor Relations Act.  The Labor Department has issued its own joint employer standard for claims made under the Fair Labor Standards Act.  The Equal Employment Opportunity Commission is expected to issue its own joint employer standard for claims made under federal discrimination statutes.


For additional information:  https://nlrb.gov/news-outreach/news-story/nlrb-issues-joint-employer-final-rule

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

Breaking: Labor Secretary Rumored to Be Leaving Administration

A few hours ago, word leaked out that Labor Secretary Marty Walsh (“Walsh”) is in the midst of negotiations to head up the NHL Players Union and leave his position at the Labor Department. Walsh, who has served as the sole Labor Secretary under President Biden, has taken part in a labor renaissance of sorts as support for organized labor has increased during his term as Labor Secretary (although the number of workers that have joined a union over the past two years has not grown as mush as some expected.)  He has also overseen the ongoing negotiations with rail workers over a new contract, although that matter is still on shaky ground and playing out as we speak. As for who might step into the vacant Labor Secretary role, there are already rumblings that President Biden should nominate Deputy Labor Secretary Julie Su (a strong labor advocate) or even a progressive like Senator Bernie Sanders.  Until Walsh officially gives his notice, however, I would expect some/many potential...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more