September 06, 2022

Are You My Employer? NLRB Proposes New Answer…Again

On September 6, 2022, the National Labor Relations Board (NLRB) announced it would publish a new, proposed joint employer rule.  The joint employer rule is used to determine when two separate entities are both employers of the same employee, regardless of intent.

How does this happen?  Imagine you use a temporary staffing firm to send its workers to work on your worksite to fill vacant jobs.  The staffing agency is their employer. You might be, too, if you regularly exercise control over the manner and means by which those workers provide services or work for you.  The same could happen with nearly any worker who is supplied to you by a third entity: security guards, cleaners, parking lot attendants, staffing nurses, and many, many more.

So what? The implications are numerous and can be meaningful related to:

  • wage and hour compliance;
  • providing leave under the FMLA, state, and local laws;
  • reasonable accommodation obligations under the ADA and Title VII;
  • plus, union organizing and other protected activities under the National Labor Relations Act (NLRA);
  • …to name a few.

Of course, part of the challenge for employers is knowing which rule to follow for which situation. Federal agencies like the U.S. Department of Labor, Equal Employment Opportunity Commission, and NLRB do not use the same rule or definition of joint employer.

Highlights. The NLRB’s rule was last finalized in 2020 under the prior Administration. Today, an entity may generally be considered a joint employer if it actually exercises direct control over a worker. Under today’s proposed rule, you could be a joint employer if you have the authority to exercise control over the manner and means of these third-party workers, “regardless of whether that right is exercised…[or] whether the power is exercised directly [or indirectly].”

Next Steps. Talk to your company’s employment counsel. Understand how this proposed rule may impact your business operations. You can submit comments to shape this important public policy issue through November 7, 2022. Click here to read the proposed rule. As of this writing, the portal for submitting online comments is not yet available. Click here to see if it is now open or for other instructions for submitting comments.

NOTE: This rule was not unanimous. Two of the five members of the NLRB do not agree with this proposed rule. Their dissent begins on page 11 of 23.