NLRB Proposes New Joint-Employer Rule

September 17, 2018

The National Labor Relations Board (“NLRB” or the “Board”) has proposed a new rule to be applied by the NLRB to determine whether an employer may be considered a joint employer of a separate employer’s employees. The proposed new rule is a return to NLRB precedent that was in place until 2015; in 2015, the Board issued a rule stating that if a putative joint employer possessed the ability to control employees’ terms and conditions of employment, even if only indirectly, and even if not actually exercised, that was sufficient to support a joint employer finding. Pursuant to the proposed new rule: “An employer may be considered a joint employer of a separate employer’s employees only if the two employers share or co-determine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction." While this development is the proposal of a new rule, it seems likely the proposal will result in a final rule issued by the NLRB. SESCO has a long history of ensuring employers are compliant with NLRB rules and case holdings; as such, if employers have questions about whether policies or practices are compliant with current NLRB rules and case holdings we recommend they contact SESCO.