As we indicated previously, the joint employer dilemma is being addressed by the National Labor Relations Board (NLRB) by way of a proposed rule. The proposed rule was announced in September of 2018 in response to the Browning-Ferris decision issued in 2015.
By way of brief background, for at least 30 years, the NLRB consistently held that two companies would only be considered “joint employers” if they actually shared or co-determined those matters governing the essential terms and conditions of employment. Then, the NLRB issued the Browning-Ferris Industries decision in 2015 determining that employers need only retain the potential right to control the essential terms and conditions of employment to be considered joint employers. The Browning-Ferris decision eliminated the decades old requirement that the employers “actually exercise” joint control over the essential terms and conditions of employment to be considered joint employers. The decision was appealed by the employers in 2015 and argued to the D.C. Circuit Court of Appeals in March of 2017. Finally, on December 28, 2018, the D.C. Court of Appeals in a 2-1 decision upheld the Browning-Ferris standard but with stated reservations about the NLRB’s explanation of the specific factors relied upon in arriving at its decision. Therefore, the court remanded the case back to the NLRB for further analysis and ruling on the matter. Thus, the Joint Employer dilemma continues in the Browning–Ferris case.
In the meantime, regarding the new proposed rule on joint employers, the NLRB has twice extended the initial comment period from November 13, 2018, to December 13, 2018; and recently from December 13, 2018, to January 14, 2019. The NLRB stated that it has already received many thousands of comments from the public on the proposed Joint Employer rule. Presumably, the proposed rule will become law through the rule-making process sometime in 2019. We will continue to monitor this issue for our clients. Please contact members of our Labor & Employment Section with any questions or concerns.