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NLRB’s Proposed Joint Employer Rule: Comment Period Extended to December 13

The National Labor Relations Board (NLRB) has extended the comment period for its new proposed joint employer rule, giving the public until December 13 to weigh in.

The joint employer standard under the National Labor Relations Act (NLRA) has been the bane of many employers’ existences since even before the NLRB decided Browning-Ferris in 2015.  In recognition of the difficulty in overturning this case at the Board level, NLRB Chair Ring decided to use an end run and resolve the joint-employer issue through rule making.  In September, the NLRB proposed a new joint employer rule which would make it harder to find joint employers, especially in temporary employee and franchisee-franchisor relationships.

Under the current Browning-Ferris standard, an employer can be found to be a joint employer of another entity’s workers by merely possessing the authority to exercise indirect control over the other company’s employees.  The NLRB’s new proposed rule would do away with the Browning-Ferris standard and require a showing that the alleged joint employer possess and exercise “substantial, direct, and immediate control” over the workers of another entity.

The comment period on the proposed rule was set to close on November 13, but an October 13 notice issued by the Board extended the period for an additional 30 days.  The notice provides the following information for members of the public looking to voice their opinion on the rule:

Public comments are invited on all aspects of the proposed rule and should be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

A finding of joint employment can have significant legal consequences for businesses of all industries, but is especially concerning for those using staffing companies or those involved in franchising.  It is unknown when we can expect the final rule to be issued, but we will continue to monitor this and provide you with updates.

Brody and Associates regularly advises management on complying with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.