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NLRB Formally Proposes Codification of Hy-Brand Joint Employer Standard


At long last, on September 14th, the National Labor Relations Board ("NLRB") published in the Federal Register the proposed joint employer standard, based upon the vacated decision in Hy-Brand Industrial Contractors, Ltd.  Readers might recall that ever since the NLRB had majority control by Republicans, employers and pro-business groups pushed for a change to the Browning-Ferris joint employer standard (established during the President Barack Obama NRLB era) that stipulated that joint employer liability could exist if an employer exercised direct or indirect control over a separate employer's employees.

Under this proposed rule, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or co-determine the employees' essential terms and conditions of employment, such as firing, discipline, supervision, and direction.  Going one step further, this rule would establish that the putative joint employer must possess and actually exercise substantial, direct, and immediate control over the employees' essential terms and conditions of employment that is not limited and routine.  As a result, this proposed codification would do away with the Browning-Ferris direct or indirect joint employer standard.

It is important to note that this proposed rule is not official and reflects the "preliminary view" of the NLRB that is subject to revision in response to comments.  The comment period is open for approximately 60 days after the date of publication in the Federal Register.  With Republican appointed Board members having a 3 - 2 majority, I would be surprised if this codification did not take effect soon after the comment period closes.


For a copy of the proposed rule:  http://hr.cch.com/eld/2018-19930.pdf

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