NLRB Is Redefining “Joint Employer”

The National Labor Relations Board has signaled its interest in re-defining “joint employer” for purposes of determining liability, writes Steptoe & Johnson attorney Todd L. Sarver. What the Board would like to do is institute an “economic realities or dependence” test, he says, as opposed to the “the immediate, direct control” on which the current test is based. The broader definition would look at such things as involvement in setting work schedules, setting wages, the hiring process and even elements of operations. The trend has been seen in two recent high-profile examples, a case involving Browning-Ferris Inc. and a series of complaints against McDonald’s USA. The upshot is that it could get a lot easier for franchisors, or businesses that use contractors or staffing agencies, or even companies that just outsource certain functions, like cleaning or security, to be deemed joint employers.