In December 2021, the National Labor Relations Board (NLRB) announced it will issue proposed rulemaking on the standard for determining whether two employers are “joint employers” under the National Labor Relations Act (NLRA) imminently. Now is the time for manufacturers to prepare.
To be considered a joint employer under current law, an employer must have “substantial direct and immediate control” over one or more “essential terms and conditions of employment” of another employer’s employees, such that the “entity meaningfully affects matters relating to the employment of those employees.” NLRB Rules and Regulations, § 103.40.
The NLRB is expected to revert to its previous Browning-Ferris standard or issue a similar rule. Under the Browning-Ferris standard, entities were deemed joint employers if they possessed an ability to indirectly control employment terms and conditions of another employer’s employee, even if the entity never actually exercised that ability. Browning-Ferris Industries, 362 NLRB 1599 (2015).
Restoring the Browning-Ferris joint-employer standard, or issuing a similar rule, could significantly affect employers in the manufacturing industry — particularly since many manufacturers are struggling with labor shortages and utilizing third parties, such as staffing agencies, to fulfill staffing needs. Among other results, a joint-employer finding would make both entities liable for each other’s unfair labor practices.
There are several steps manufacturers...
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