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The National Labor Relations Board on Tuesday announced a draft of its long-anticipated new “joint employer” definition. 

The proposed standard would replace and expand the Trump-era  joint employer rule. Under the new language, companies could face legal action for labor law violations committed by their contractors or franchisees.

Under the proposed 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, told the McKnight’s Business Daily. She specializes in employment and labor law.

Expanding the test for establishing joint employer status could mean that “long-term care operators will 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.

“Joint employers can be held liable to employees under a variety of laws, including under the National Labor Relations Act for unfair labor practices,” Long said, adding that a similar proposed rule is anticipated from the US Department of Labor to apply to wage payment related issues under the Fair Labor Standards Act.

Public comments about the proposed NLRB rule, due by Nov. 7, can be submitted electronically at or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001.

For additional coverage of the proposed rule, see McKnight’s Long-Term Care News. Click on “Joint Employer” below to read other stories on the topic.