The National Labor Relations Board is once again extending the time for submitting comments on its proposed joint-employer standard for an additional 30 days, from December 13, 2018, to January 14, 2019, according to its December 10 announcement. The Board previously lengthened the comment period from 60 to 90 days. Comments replying to the comments submitted during the initial comment period must be received by the Board on or before January 22, 2019, under the updated comment schedule.
Under the Board’s proposed rule, which removes the standard from the case law realm and into the regulatory landscape, an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. The putative joint employer must also possess and actually exercise substantial, direct, and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.
Failed case law effort codified. The proposed rule substantially narrows the current Browning-Ferris joint-employer standard and effectively codifies the standard that the Board tried to impose with its Hy-Brand Industrial Contractors decision from December 2017. The Board was forced to vacate Hy-Brand after ethical violations were reported due to Member William Emanuel’s participation in the decision, dubbed a “do-over” for the Browning-Ferris parties, one of whom was represented by Emanuel’s former law firm.
Legal consequences significant. As the Board pointed out in a fact sheet about its proposed joint-employer standard, the legal consequences of a joint-employer finding under the National Labor Relations Act are significant. The Board may compel a joint employer to bargain over the terms and conditions of employees employed by another employer. Moreover, each company comprising the joint employer may be found jointly and severally liable for the other’s unfair labor practices. Further, a finding of joint-employer status may determine whether picketing directed at a particular business is primary and lawful, or secondary and unlawful.
Public comments are invited on all aspects of the proposed rule and should be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.
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