NLRB Agenda Includes Setting a Regulatory Joint Employer Standard

We have written previously regarding the saga of the National Labor Relations Board and joint employer status here, here, and here. In short, the question of when a business is responsible for another business’s employees has been in flux for a few years, affecting franchisee/franchisor relationships, businesses that utilize temporary employees, parent and subsidiary companies, and similar arrangements.

In 2015, a Board decision (Browning-Ferris) overturned long-standing precedent and greatly expanded this liability. Then, more recently, a new decision (Hy-Brand) vacated Browning-Ferris and returned us to the former status quo, only for Hy-Brand itself to also be vacated  because of the way the Board was comprised. Various pending remand and appellate issues abound with both cases.

NLRB Chairman John F. Ring states, “The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities.” As shown in this press release, the NLRB is considering putting a stop to this uncertainty by issuing regulations. This press release is only a possible indication of the NLRB’s regulatory agenda, and we will be sure to keep you apprised of any developments, including an anticipated Notice of Proposed Rule Making.