On Friday, December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. It remains to be seen exactly what the contours of the new joint-employer rule would be, although it has been widely predicted that the Board will revert to the standard that previously existed, which does not require the purported joint employer to actually exercise control over employment conditions, as long as the company possesses such authority.
Relevant Background
Under the National Labor Relations Act (“NLRA”), “joint employment” refers to a situation where two or more separate entities “share or codetermine” essential terms and conditions of employment, such as decisions about hiring, firing, disciplining, supervision, and direction of employees. This issue typically arises in the context of contractor/subcontractor relationships, entities that engage temporary staff, professional employment organizations, parents/subsidiaries and franchisor/franchisee situations.
The impact of a joint-employer finding is that a joint employer may have a duty to participate in collective bargaining for the other entity’s employees; may jointly or independently be responsible for unfair labor practices committed by either employer; may be subject to accretion (i.e., the process by which a union is permitted to add individuals to a bargaining unit without holding an election); and...
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