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January 21, 2019

NLRB Extends Comment Period On Joint Employer Rule – Again

Back in September, the National Labor Relations Board (NLRB) announced that it will issue a proposed rule to establish an updated standard for determining joint-employer status under the National Labor Relations Act (NLRA). Under the proposal, an employer may be found to be a joint-employer of another business’ employees only if that employer 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.

According to the NLRB’s press release at the time, the proposed rule seeks to foster predictability, consistency, and stability in the determination of joint-employer status. Originally, the general public had 60 days to comment on the rule, but then the NLRB extended that comment period to Jan. 14, 2019. Last week the NLRB extended the comment period again, this time until Jan. 28, 2019. Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before Feb. 11, 2019. Click here to read the latest announcement.

As background: in 2015, the NLRB reversed more than 30 years of precedent and issued a decision inBrowning-Ferris Industries(BFI) that greatly expanded joint employer liability under the NLRA. The decision imposed unnecessary barriers to and burdens on the contractor and subcontractor relationships throughout the construction industry. In December 2017, the NLRB attempted to reverse BFI in the Hy-Brandcase, but in February 2018, the board vacated the Hy-Branddecision for procedural reasons. Thus, BFI is now the NLRB’s standard.

Click here to learn more.