The National Labor Relations Board is reviewing public comments submitted on a proposed standard that aims to foster predictability, consistency and stability for determining joint employer liability under the National Labor Relations Act. The action is a response to an Aug. 27, 2015, decision in Browning-Ferris Industries that uprooted more than 30 years of precedent and greatly expanded joint employer liability under the NLRA—imposing burdens on contractor and subcontractor relationships throughout the construction industry.
Under the updated proposal, an employer may be found to be a joint employer only if it 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 “essential terms and conditions of employment” that establish a joint employer relationship include the ability to hire, fire, discipline, supervise and direct employees of a second employer, according to legal analysis.
