NLRB Poised to Revisit Joint Employer Standard

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As the saying goes, history often repeats itself as the National Labor Relations Board (NLRB) demonstrates. In May, NLRB Chairman John F. Ring announced that the Board will address, once again, the standard for determining joint employer status under the National Labor Relations Act (NLRA). However, this time the NLRB will use the rulemaking process.

In August 2015, the NLRB issued a decision in Browning-Ferris Industries of California that expansively broadened the definition of a “joint employer.”

The decision expanded the type and number of entities that can be held responsible for unfair labor practice violations and created collective bargaining obligations to employees of a totally separate, independent employer.

Because Browning-Ferris was a Board decision, employers were denied any opportunity to object or otherwise voice concerns on the new standard’s impact and application.

A formal rulemaking process on a new joint employer standard will give employers a chance to voice any concerns during a public comment period.

“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,” said Chairman Ring, in a press release. “In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

The NLRB anticipates issuing a Notice of Proposed Rulemaking within the coming weeks. Employers with contingent workforces may wish to keep tabs on the proposed rules and participate in the rulemaking process. The California Chamber of Commerce HRWatchdog blog will continue to keep readers updated on any further developments.

CalChamber members can read more about Joint Employer Issues in the HR Library on HRCalifornia.com.

Staff Contact: Erika Frank

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Erika Frank
About Erika Frank
Erika Frank, vice president, legal affairs, and general counsel, joined CalChamber in April 2004 as a policy advocate and general counsel, leveraging her 10 years of legal, governmental and legislative experience. Named vice president of legal affairs in 2009, she is CalChamber's subject matter expert on California and federal employment law. She oversees and contributes to CalChamber's labor law and human resources compliance publications; co-produces and presents webinars and seminars; and heads the Labor Law Helpline. She holds a B.A. in political science from the University of California, Santa Barbara, and earned her J.D. from the McGeorge School of Law, University of the Pacific.