On September 14, 2018, the National Labor Relations Board published a proposed rule in the Federal Register that will restore the NLRB’s joint-employer standard to what it was prior to the controversial 2015 Browning-Ferris decision. The Browning-Ferris decision significantly relaxed the joint-employer analysis by holding that an entity could be found to be a joint employer if it possesses actual or potential authority to exercise control over the primary employer’s employees. The proposed rule will return the joint-employer standard to the stricter standard that requires that the purported joint-employer actually exercises direct and immediate control over the primary employer’s employees.
The proposed regulation states: “An employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.”
Employers that often use another entity’s employees, such as franchisors and franchisees or contractors and subcontractors, should welcome this proposed rule. These employers will be provided greater certainty when entering into relationship with other entities.
Interested parties have until November 13 to comment on the proposed rule.
Link to the proposed rule: https://dlbjbjzgnk95t.cloudfront.net/1082000/1082515/rule.pdf
This article was written by Ryan Hansen, Law Clerk
