Earlier this week, the U.S. National Labor Relations Board (NLRB) presented a proposal to revise its standard for determining joint-employer status under the National Labor Relations Act.
The Board’s proposal largely reestablishes the broad Obama-era standard of joint employment, under which one company may be deemed the joint employer of a second company’s employees not only where it directly or immediately exercises control over the second company’s workforce, but where the first company’s putative control is indirect, or even simply reserved but not ever actually exercised.
According to Jennifer Long, special counsel to Duane Morris LLP in an interview this week with McKnight’s Business Daily, “Under the expanded NLRB standard, a senior living or care facility that ‘co-determines’ working conditions such as schedules, wages and other benefits with its staffing contractors, therapy or other care-providing vendors should be prepared for the possibility of being found jointly liable for unfair labor practices or responsible to engage in collective bargaining with a union seeking to represent the workers.”
Additional potential consequences of the proposed standard could require a joint employer to bargain with a union representing jointly employed workers; may be subject to joint and several liability for unfair labor practices committed by the other employer; and may be subject to labor picketing that would otherwise be unlawful.
The Coalition for a Democratic Workplace (CDW) will be leading efforts to oppose the proposed standard. Please view their statement here. Argentum is a member of the CDW and the U.S. Chamber of Commerce and will support their efforts in opposing the proposed standard. The deadline to submit comments on the proposal is November 7, 2022.
