The Trump administration National Labor Relations Board (NLRB) recently posted a proposed rule revising its joint employer standard—which determines when lead employers can be held as jointly responsible for the practices of contractors and franchisees. Alarmingly, the proposed rule narrows the standard from the pre-2015 Browning-Ferris revision, which made it easier for unions and working people to hold companies accountable for the practices of contractors and franchisees towards their workforce.

The Board’s proposal is so narrow that it is hard to think of an instance where two entities could be found to be jointly responsible under the proposed rule, which would permit a finding of joint employment only when an employer: “possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.”

The Board notes further that “indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.”

The Board’s proposal seeks input from the public, asking specifically for stories and experiences from unions, workers, and employers regarding their experiences and any harms that might result from a narrowing of the standard in “workplaces where multiple employers have some authority over the workplace,” including labor disputes, organizing, and contractual arrangements. It also seeks comments on the state of the common-law on joint employment.

It is unusual for the Board to issue rulemaking, and even more unusual if not unprecedented for a member to dissent—Member Lauren McFerran dissents from the NPRM and lists her own suggestions for proceeding more carefully in a complex area.  She also seeks comments and examples from the public.

Comments on the rule are due 60 days from publishing in the Federal Register, on November 13, 2018. NELP is preparing comments on the Rule and will circulate model template comments for your use before the comments are due.

Comments can be made directly, or by mail or hand-delivery to Roxanne Rothschild, Deputy Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

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