In September 2018, the National Labor Relations Board (NLRB) published its new proposed rule for determining joint-employer status under the National Labor Relations Act (NLRA). Through the formal rulemaking process, employers have the opportunity to voice any concerns about the proposed joint-employer rule during the public comment period, which was initially to remain open until November 13, 2018.
Since September, the NLRB has extended the deadline to submit comments twice, each time providing an additional 30 days. The public comment period was first extended to December 13, 2018. Most recently, the NLRB further extended the time for submitting public comments to January 14, 2019. Parties will also have the opportunity to submit replies to comments no later than January 22, 2019. You can read and/or submit your comments on the Federal Register website.
As a quick recap, the proposed rule recommends that an employer only be considered a joint-employer of another employer’s employees if it “possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.” Under the proposed rule, indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship. The proposed rule would do away with the test established by the Obama Board in 2015 through the Browning-Ferris Industries of California, Inc. decision, which considerably broadened the definition of a “joint-employer” and categorized many more entities as joint-employers.
Employers should keep in mind that California has its own set of rules when it comes to joint-employer liability.