Changes are likely on the way to NLRB Joint Employer Rule

By Molly L. Kaban and Raymond F. Lynch, for Industry Week

Aug 16, 2018

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The expansive joint employment standard implemented by the National Labor Relations Board in 2015 appears likely to change soon. On June 5, 2018, the Chairman of the Board, John Ring, announced that the Board will develop rules setting forth the standards for determining whether an organization is a "joint employer" for the purposes of the National Labor Relations Act.

The National Labor Relations Board (NLRB) is the federal agency tasked with enforcing the National Labor Relations Act (NLRA), the United States' foundational statute guaranteeing the basic rights of private sector employees to organize into trade unions, engage in collective bargaining and take collective action, such as striking, if necessary.

In August 2015, the five-member Obama-era Board issued Browning-Ferris Industries of California, Inc., 362 NLRB No. 186, a sweeping decision that expanded the definition of "joint employer" under the NLRA. When the new rules issue, however—assuming they nullify Browning-Ferris—employers will be able to exercise some control over subcontractor hiring, discipline, wage rates and other terms and conditions of employment and without fear of being held responsible for the subcontractor's unfair labor practices or being targeted by unions trying to organize the subcontractor's employees.

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