On September 14, the National Labor Relations Board (NLRB) announced that it would publish a “Notice of Proposed Rulemaking” in the Federal Register regarding its joint-employer standard. The proposed rule will adopt the pre-Browning-Ferris standard for determining if two or more employers are joint employers of employees.
Under the proposed rule, 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. 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 would return the definition of a joint-employer to the pre-Browning-Ferris decision. In that controversial 2015 Obama-era decision, the NLRB expanded the definition of joint-employer, changing the degree of control a contractor must have over a contracted employer for the two to be considered joint employers. Browning-Ferris determined that direct control was no longer needed and that indirect control or potential control would satisfy the test.
There will be a 60-day comment period following the publication of the proposed rule.
Practice Tip: The rule is expected to settle a contentious area of the law for employers and finally define who is a joint employer. If the definition returns to the pre-Browning-Ferris test, it would be good news for employers because the elements of control would be more clearly defined.