Tuesday, November 29, 2022

NLRB Poised to Revisit Joint Employer Standard

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

Erika Frank
Erika Frank
Erika Frank, longtime general counsel and executive vice president of legal affairs for the CalChamber, accepted an of counsel position in September 2021 at the Shaw Law Group, a leading employment law firm in Sacramento. She leveraged more than two decades of legal, governmental and legislative experience in advising the CalChamber and its members on the impact that labor laws, court decisions and regulations will have on employers. She has been the most frequent host of The Workplace podcast; oversaw and contributed to CalChamber labor law and human resources compliance publications; co-produced and presented webinars and seminars; and headed 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.

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