The National Labor Relations Board made official in its Spring Rulemaking Agenda its intention to tackle the final rule for determining joint-employer status under the National Labor Relations Act.
Under the current final rule, which went into effect in April 2020, to be a joint employer, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.
The current rule represents a reversal of a more worker-friendly rule established in the board’s 2015 Browning-Ferris decision. In Browning, the NLRB ruled Browning-Ferris Industries of California was a joint employer of workers employed by staffing firm Leadpoint Business Services at BFI’s Milpitas, Calif., recycling site. The board cited indirect and direct control that BFI possessed over key employment terms and conditions of the Leadpoint workers.
Because the current joint-employer standard was established by a final rule process, it cannot be changed by a case decision. The NLRB must go through a new rulemaking process, according to attorneys with Proskauer Rose LLP, who say the notice of proposed rulemaking, which opens the formal process for public comment on proposed rules, is likely to open in September.