Proposed NLRB Rule Would Tighten Definition of “Joint Employer”

The National Labor Relations Board has proposed a rule that would result in fewer business being classified as a joint employer. It would essentially reverse the Board’s decision in Browning-Ferris Industries of California, Inc., 2015, which had widened the definition, much to the dislike of franchisers and other business groups. A joint employer “may be required to bargain with a union representing jointly employed workers; can be subject to joint and several liability for unfair labor practices committed by the other employer; and may be subject to labor picketing that would otherwise be unlawful,” notes this analysis from the Littler firm. The new rule would consider a company a joint employer only where it has “substantial direct and immediate control” over the essential terms of employment. Three of the four current sitting members of the board approved the proposal, the single dissent coming from the only remaining Democrat. The proposal is open for public comment through November 13 of this year.