Editor’s note, Sept. 14: The rule has been published now, here. The deadline for comments is Nov. 13.
A senior living operator or other employer would be defined as a “joint employer” of another company’s workers only if it “possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine,” under a proposed rule announced Thursday by the National Labor Relations Board.
The proposed rule is scheduled to be published in the Federal Register on Friday and is viewable as a PDF now. Public comments will be accepted for 60 days once it is published.
The current standard, established in 2015 in Browning-Ferris Industries of California Inc., holds that a company must exhibit only the potential to exert control over terms and conditions of employment, rather than have “direct and immediate” control as had been the previous standard, to be considered responsible for decisions related to worker wages and working conditions, including labor law violations.
Organizations representing senior living operators had objected to the revised definition that is the current standard, saying that it could negatively affect management-employee relations and resident care. The definition is thought to apply to senior living operators that use temporary or contract workers as well as operators that have franchises, among others.
“Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship” under the rule, if finalized as written, the NLRB said Thursday. The agency said it was proposing the changed definition to “foster predictability, consistency and stability in the determination of joint-employer status.”
NLRB Chairman John F. Ring and board members Marvin E. Kaplan and William J. Emanuel proposed the new standard. Board member Lauren McFerran dissented.
The agency said the proposed rule reflects the board’s majority initial view, subject to potential revision in response to public comments, that the National Labor Relations Act’s intent “is best supported by a joint-employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.”
“I look forward to receiving the public’s comments and to working with my colleagues to promulgate a final rule that clarifies the joint-employer standard in a way that promotes meaningful collective bargaining and advances the purposes of the Act,” Ring said in a statement.
