The prospect of college athletes gaining recognition as employees became scarier for the NCAA last Thursday when the National Labor Relations Board (NLRB) issued its final rule on when a business is a joint employer under the National Labor Relations Act (NLRA).
The new test, which goes into effect Dec. 26, will make it easier for a worker to claim a business owes them for their work—and could have downstream effects for the NCAA and college conferences as the NLRB ponders whether USC athletes deserve employee designation.
A joint employer shares responsibility for employment with another employer or employers. All of them must bargain with a worker and their union, and all can be deemed jointly liable if one commits an unfair labor practice or engages in other unlawful acts.
Under the new test, so long as a business has the capacity to control a worker’s essential terms and conditions of employment (hiring, wages, work hours, discipline, supervision, firing, etc.), the business can be deemed a joint employer—even if its control is indirect and even if the business doesn’t use that control. Under the current and now expiring test, a joint employer must directly and immediately control employment.
The development poses significant ramifications for franchisors and franchisees. Their workers will become more able to assert they have two employers, a franchisor and franchisee, even if only one decides work schedules, pay and hours.
Unions will likely gain more influence...
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