NLRB to look at 'joint employer' standard again

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NLRB Chairman John F. Ring was sworn in April 16.
NLRB Chairman John F. Ring was sworn in April 16.

The National Labor Relations Board said Wednesday that it is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act.

“Whether one business is the joint employer of another business' employees is one of the most critical issues in labor law today,” said John F. Ring, who was sworn in April 16 as NLRB chairman. “The current uncertainty over the standard to be applied in determining joint-employer status under the act undermines employers' willingness to create jobs and expand business opportunities.”

The board said it has begun the internal process necessary to consider rulemaking related to the standard. Any proposed rule would require approval by a majority of the five-member board. First, a notice of proposed rulemaking would be issued, followed by a public comment period.

“In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be,” Ring said. “I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”

A 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, saying that it could negatively affect management-employee relations and resident care. The new definition was thought to apply to senior living operators that use temporary or contract workers as well as operators that have franchises, among others.

The 2015 standard has been the focus of several legal efforts since its issuance. In June, Alexander Acosta, labor secretary in the Trump Administration, announced that he would be rescinding the standard. In February, however, the definition reverted to the Obama-era one after the NLRB announced that one of its members had a potential conflict of interest and should not have voted in a related case.

See the links below, under Related Articles, for more on the history of the standard.

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