NLRB seeks to expand joint-employer definition

The National Labor Relations Board (NLRB) published its long-awaited proposed regulation defining the joint-employer relationship. The new rule, which reinstates an “indirect control” standard, hopes to bring an end to a protracted conflict (the Browning-Ferris saga) that began in 2015 and included repeated, confusing changes of position by the Board and the courts and even had bitter allegations of ethical violations by Board members thrown in. The prickly relationships on the NLRB continue to this day.

Creating joint-employer relationship

At issue throughout the debate was how to determine when a joint-employer relationship was created. If such a relationship exists, both parties are regarded as an employer and can be jointly liable for violations of employment and labor laws by each other. As significant, both parties would be subject to union organizing and collective bargaining. Thus, a giant fast-food franchisor could be liable for misconduct by a distant franchisee during, say, a union campaign. As contracting out and franchising expanded to include millions of workers in the past decades, this issue rivaled the classification of independent contractors as a major controversy in employment law.

The joint-employer odyssey