Earlier this month, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM), that would move the goalposts for what is considered a joint employer under the National Labor Relations Act (NLRA).[1] The effect could mean joint and several liability for another company’s labor law violations and/or a joint obligation to bargain with that other company’s labor union.
Instead of requiring a showing of “direct and immediate control,” the NLRB’s proposed rule would instead emphasize that a company with “indirect” and/or “reserved” forms of control over the terms and conditions of another company’s employees can be found a “joint employer” under the NLRA.
Further, the proposed rule broadens the definition of the “essential terms and conditions of employment” by including topics such as workplace health and safety, work or schedule assignments, general work rules, and recommends that this expanded list is non-exhaustive. This could leave companies to guess what could be added to this list of “essential” terms and conditions of employment.
It was not unexpected that the NLRB would put an emphasis on indirect control as exhibited in, for example, a simple subcontract or a master service agreement. It is unexpected that the NLRB provided no guidance on what types of provisions in business-to-business contracts would be considered evidence of indirect control sufficient to support a finding of being deemed a joint employer. In oral argument under a...
Professional rivalry and office politics were the driving forces behind the "false" sexual harassment and conversion allegations levelled against Tata Consulting Services (TCS) employee Raza Rafiq...