Today, the NLRB issued their Final Rule on what constitutes joint-employer status under the National Labor Relations Act. This new rule overrides the old 2020 standard, that was much stricter in what type of control had to exist over employees.
Who Has the Power?
Under the new rule, companies or entities can be considered joint employers over a group of individuals if both entities determine one or more of seven different conditions of employment: 1) wages, benefits, and other compensation; 2) hours of work and scheduling; 3) assignment of duties; 4) supervision of those duties; 5) work rules and discipline; 6) hiring and discharge; and 7) safety and health conditions. The new rule looks at whether the possible joint employers have the authority to control those conditions, even if they don’t exercise that control. This is much broader than the 2020 rule that held that joint employers had to possess and exercise substantial direct and immediate control over essential terms and conditions of employment. The NLRB states that this new final rule more accurately reflects the common law definition of joint employers.
How Does This Affect Us?
If you share employees with another entity, as either a subcontractor or some other type of relationship, you may be judged to be a joint employer if your relationship gives you the ability to control one of the specified conditions of employment listed above. That may open you up to liability for certain aspects of the NLRA, even if you don’t exercise that control. It is a good idea to look at any relationships and what sort of control may be shared.