The Ever-Changing Joint Employer Standard Under the NLRA Enters the Administrative Rule-Making Realm: What Retailers Can Expect

By now, most companies are at least aware of the possibility of being held liable for violations of worker protection statutes committed by their franchisees, subsidiaries, or third-party contractors. Under the doctrine of joint-employer liability, a company—depending on the degree of control it maintains or exerts over terms of employment—may be deemed a joint employer of the employees of a separate company with whom it contracts.

To protect themselves, companies need to know what type and amount of control over employment terms could be sufficient to trigger joint-employer liability and deem them an employer of another company’s employees. Unfortunately, the National Labor Relations Board (“NLRB”) continues to change the joint-employer standard under the National Labor Relations Act (“NLRA”), 29 U.S.C. §151, et seq.

Following the recent vacatur of a decision setting forth the then-current standard, the NLRB has apparently given up on using the facts of a particular case as a vehicle to delineate the joint-employer standard. Instead, the NLRB will engage in administrative rulemaking to set its joint-employer standard, and it very recently released its Notice of Proposed Rulemaking (“NPRM”) setting forth a new proposed rule. A review of the changes to this standard over time should help retailers understand how we got here and how to prepare for the forthcoming changes.

The full article, "The Ever-Changing Joint Employer Standard Under the NLRA Enters the Administrative Rule-Making Realm: What Retailers Can Expect," was first published in DRI Retail and Hospitality Customer Connection, Volume 4, Issue 2 on October 15, 2018.