NLRB efforts to liberalize joint employer standard won't go away.

AuthorHyman, Jon

Joint employment under the NLRA has a tortured history over the past seven years. In early September, the NLRB released a notice of proposed rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Currently, one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters... a lot... because if you're a joint employer over the employees of another employer, you are jointly and severally liable for the legal wrongs committed by the primary employer.

Under the proposed standard:

* Two or more employers of the same employees are joint employers if the employers directly or indirectly possess the authority to control, or exercise the power to control, employees' essential terms and conditions of employment. Merely possessing the authority to control would be enough, regardless of whether that authority is ever exercised.

* "Essential terms and conditions of employment" include but are not limited to wages, benefits and other compensation; hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and work rules and directions governing the manner, means or methods of work performance.

The NLRB says the proposal seeks to provide clarity.

I say, "Poppycock!" This change has nothing to do with clarity or certainty. Instead, it's all about maximizing the ability and opportunity for employees to recover damages from employers. Further, there is nothing "clear" or "certain" about injecting nebulous and subjective standards such as "indirect...

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