NLRB To Roll Back Joint Employer Rule

On Sept. 13, 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 proposed rule, 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, the proposed rule seeks to foster predictability, consistency, and stability in the determination of joint-employer status. The general public will have the opportunity to comment on the proposal, and responses must be received within 60 days of the notice’s publication in the Federal Register. The Coalition for a Democratic Workplace (CDW), which the Metals Service Center Institute is a member of, plans to submit comments to the board before the deadline.

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.

The CDW has been a vocal opponent of the expanded definition of joint employer and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years. Click here to learn more.