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June 18, 2018

Coalition For A Democratic Workplace Fights To Clarify Employer Liability Rule

On June 5, National Labor Relations Board (NLRB) Chairman John Ring announced the NLRB plans to conduct notice-and-comment rulemaking to define a new joint employer standard under the National Labor Relations Act (NLRA).

As a reminder, in 2015 under the previous administration, the NLRB departed with established law in its Browning-Ferris Industries (BFI) decision, which drastically expanded the NLRA’s standard for determining joint employer status to it include indirect or even just unexercised potential control over the terms and conditions of employment. This confusing standard created uncertainty and drastically expanded the number of business relationships that could trigger joint employer liability.

The NLRB is now trying to address that problem through notice-and-comment rulemaking.

On June 13, the Coalition for a Democratic Workplace (CDW), which MSCI is a member of, joined a broader group of industry associations in filing a petition that, if answered affirmatively by the NLRB, could clarify the operating landscape and protect thousands of businesses. By filing the petition, CDW hopes to further solidify the Board’s commitment to rulemaking on this important issue.

The CDW maintains Congress, President Trump, and the NLRB should move to codify into law the traditional joint employer standard through decisions, rulemaking, and legislation in order to provide an understandable, predictable and workable standard that allows local businesses and entrepreneurs to create jobs.

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