The NLRB’s new joint-employer rule is out today. Here are the three things employers need to know about it.

Why should you care about joint employment? What’s new? And why did the National Labor Relations Board change the rule?

Let’s answer these questions…

Why should you care about joint employment?

Here is what the Board thinks:

  • If the employees are represented by a union, the joint employer must participate in collective bargaining over their terms and conditions of employment.
  • Picketing directed at a joint employer that would otherwise be secondary and unlawful is primary and lawful.
  • Each business comprising the joint employer may be found jointly and severally liable for the other’s unfair labor practices.

What’s new?

Under the new rule, a joint-employer relationship involves one business that possesses and exercises substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.

“Essential terms and conditions of employment” are wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.

“Substantial direct and immediate control” means regular or continuous consequential effect on an essential term or condition of employment of another employer’s employees. Such control is not “substantial” if it is only exercised on a sporadic, isolated, or de minimis basis.

And why did the National Labor Relations Board change the rule?

The Board says that it’s 2015 decision in Browning-Ferris unsettled the law in this vitally important area by holding that a company could be deemed a joint employer if its control over the essential terms and conditions of another business’s employees was merely indirect, limited and routine, or contractually reserved but never exercised.

I say, dude, because that’s what Boards often do when they change over from Democrat to Republican and vice-versa.

The final joint-employer rule will go into effect on April 27, 2020.

 

“Doing What’s Right – Not Just What’s Legal”