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How to relieve your joint employment anxiety

Recently, some government agencies (including the National Labor Relations Board and the federal Departments of Labor and Treasury) have changed their rules to more easily find joint employment in situations where they did not find it before – such as franchise networks and staffing arrangements.

Joint employment can expose separate employers to union organizing and to increased liability for wage payment, payroll taxes, civil rights violations, workplace safety, and other issues. It can also subject small employers to federal jurisdiction under laws that would otherwise exempt them for having fewer than 15, 20, 50, or 100 employees.

The possibility of joint employment in using contingent workers is not really news and should not be a big issue now. However, in the past, some companies needlessly imposed assignment limits following the Microsoft benefits case and are now imposing excessive coverage mandates under the Affordable Care Act. Spurred by advisors’ warnings of joint employment risk, companies may seek help with “solutions” to it from their staffing providers.

Here are some ways you can ask your suppliers to help:



The terms of the workers’ employment may also be useful for rebutting joint employment theories. The NLRB’s Kalamazoo Paper Box decision listed factors relevant to determining whether joint employees have the “community of interest” necessary for including assigned employees in a client’s union bargaining unit. To avoid this combination, and for several issues, you and your supplier may want to maximize differences in your workforces according to these factors:

Note that assignment length is not on this factor list.


Staffing agreements can contain helpful items:

There is no guarantee that these measures will fend off a joint employment finding by a determined court or government agency, but they should make the case harder for your opponents to win.