The joint-employer NPRM is the more far-reaching and complex of the two and requires a brief recap of its significance and history. Under the joint-employer theory, the statutory employees of one employer (Employer B) may also be deemed the statutory employees of another employer (Employer A) where Employer A exercises the requisite degree of control over the wages, hours, and working conditions of Employer B's employees. This issue is potentially applicable to a myriad of business-to-business arrangements including, but not limited to, the franchisee/ franchisor, contractor/subcontractor, and user/employee leasing or temporary company relationships. Indeed, if the criteria are "loose" enough, it could be applicable to any employers in functional privity to one another.
The question of whether two entities are joint employers turns on the type and degree of control held by one entity over the employees of another. Until recently, this was a matter of long-settled Board law. For decades, the Board had held that to be deemed joint employers the two entities had to codetermine the essential terms and conditions of employment for the employees in question. The Obama Board, however, overturned this precedent and spawned an enormous amount of policy uncertainty and disarray when it issued its 2015 decision in BrowningFerris Industries (BFI). (See the Practical NLRB Advisor, Issue 1). In BFI, the Board held that even evidence of indirect or merely...
Unfortunately, Gregg Phillips’ claims that he was twice teleported from one place to another aren’t the biggest problems for this top government official with a long history of shady deals, charit...