The National Labor Relations Board (NLRB) wants to change the standard on when two employers who do business together are considered to be joint employers and liable for one another's unfair labor practices.
On Sept. 6, the board issued a notice of proposed rulemaking that would replace the proposed rule that took effect on April 27, 2020. Under that rule, an employer could be a joint employer of another entity if it had direct and immediate control over the essential terms and conditions of employment of the other entity's workers.
Under the proposed rule, two or more employers would be considered joint employers if they "share or codetermine those matters governing employees' essential terms and conditions of employment."
Comments on the proposed rule are due Nov. 7. The NLRB is likely to act quickly on finalizing and enforcing the rule after its reviewed comments, according to Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.
If two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute. Moreover, if one entity is determined to be the joint employer of a second organization, the first will have a bargaining obligation with the other entity if the employees of the second organization...
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