Thursday, February 27, 2020

NLRB: We have a new "joint employer" final rule too!

Noooo, not the new FLSA joint employer final rule from DOL. This is a different one. On Tuesday, the NLRB issued a final rule regarding joint employers under the NLRA (press release).
Not official use.
To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.
You can read the actual Final Rule here (the regs are pretty short, running from pp. 191-94). The NLRB has provided specific definitions for many terms. Most notably, the "essential terms and conditions of employment" are defined as "wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction." For each of those eight categories, the rule defines what it means to exercise "Direct and Immediate Control."

You may recall that the DC Circuit asserted its dominance about a year ago in Browning-Ferris - applying the common law test, and basically holding that the Court and not the NLRB rules on this issue. That said, the Court did leave open room for the NLRB to "color within the common-law lines identified by the judiciary." In the final rule, the NLRB claims that it did just that. Courts will ultimately have the final say though.

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