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.