If the proposed rule is adopted in its current form, an employer would only be considered a joint employer if it shared or codetermined the “essential terms and conditions” of employment over the workers of another business, and there must exist evidence of direct and immediate control before a joint employer relationship can be found. This includes pivotal human resource activities such as day-to-day supervision, hiring, discipline, and firing. The employer would need to not only possess but actually exercise “substantial direct and immediate control” over the essential terms and conditions of employment in a way that is not considered “limited and routine.” As the Board explains, if the proposed rule is adopted, it will be insufficient to establish joint employer status “where the degree of a putative joint employer’s control is too limited in scope (perhaps affecting a single essential working condition and/or exercised rarely during the putative joint employer’s relationship with the undisputed employer).” By including such requirements, the proposal would almost certainly mean that fewer businesses would be found to be a joint employer by a court or agency.
The announcement that preceded publication of the planned rule stated that the proposal “reflects the Board’s preliminary view, subject to potential revision in response to comments, that the NLRA’s purposes of promoting collective bargaining and minimizing industrial strife are best served by a joint-employer doctrine that imposes bargaining obligations on putative joint employers that have actually played an active role in establishing essential terms and conditions of employment.”
The Board went on to say that its “preliminary belief is that, absent a requirement of proof of some ‘direct and immediate’ control to find a joint employment relationship, it will be extremely difficult for the Board to accurately police the line between independent commercial contractors and genuine joint employers. The Board is inclined toward the conclusion that the proposed rule will provide greater clarity to joint employer determinations without leaving out parties necessary to meaningful collective bargaining.”
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