What Expanding Joint Employer Rules Mean for You

The recent trend of expanding joint employer liability means companies need to carefully analyze their potential joint employer status to understand and mitigate any risk. The common law test for joint employer liability has historically required that the putative joint employer exercise actual control over the putative employee – “actual control” meaning a direct and immediate degree of control over essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. However, both the National Labor Relations Board and the Department of Labor have recently posited that joint employment means having a “right to control” the putative employee, regardless of whether that control is ever exercised.