The National Labor Relations Board’s proposed “joint employer” rule, barring unforeseen circumstances, should be finalized in August, the board stated Wednesday in an updated filing with the District Court for the District of Columbia.
The filing came in the case of the Service Employees International Union v. NLRB, originally filed Sept. 17, 2021. The case was the impetus for review of the joint employer rule. The public comment period for the proposed rule ended Thursday, and the board is reviewing the comments.
The proposed rule expands the test for establishing whether someone has joint employer status, which for long-term care and other employers would mean that they would “face increased exposure and liability to the extent they use employees and staff provided by a third party,” Michael Carrouth, a labor relations partner at Fisher Phillips, previously told the McKnight’s Business Daily.
There is currently a stay in the court case through March 12. The NLRB said that it intends to file a motion to extend the stay until the rulemaking process is completed.
Under the proposed joint employer rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules.
“Under the expanded NLRB standard, a senior living or care facility that ‘co-determines’ working conditions such as schedules, wages and other benefits with its staffing contractors, therapy or other care-providing vendors should be prepared for the possibility of being found jointly liable for unfair labor practices or responsible to engage in collective bargaining with a union seeking to represent the workers,” attorney Jennifer Long, special counsel at Duane Morris LLP, previously told the McKnight’s Business Daily.
Senior living advocates formally have voiced their opposition to a rule for determining joint employer status. Argentum signed on to comments from the Coalition for a Democratic Workplace, which recommended that the NLRB “start over or leave the current standard in place.” As previously reported by McKnight’s Senior Living, Argentum is opposed to the proposed standard. The association’s vice president of government relations, Paul Williams, previously told McKnight’s Senior Living, that it will “continue efforts in conjunction with the Coalition for a Democratic Workplace, US Chamber of Commerce and others to defeat it.”