It appears that the days of expanded joint employer liability
may be numbered, as the National Labor Relations Board's (NLRB)
2015 Browning-Ferris decision comes under attack on
On April 5th, a group of 57 mostly Republican
congressmen sent a letter to the Chair of the Labor Subcommittee
on the House Appropriations Committee asking for a
"rider" to Fiscal Year 2018 spending legislation. They
are seeking to use the budget process as a way to block the
NLRB's joint employer standard. Meanwhile, in March, a federal
appeals court in Washington D.C. heard oral arguments over whether the NLRB exceeded
its authority when it reversed the earlier standard that had been
in place for more than 30 years.
Regardless of whether these efforts to undo
Browning-Ferris succeed, the joint employer standard will
likely return to its narrower form once President Trump appoints
two individuals to fill openings on the NLRB. When this happens, it
will give the agency a Republican majority for the first time in
nearly a decade.
In Browning-Ferris, the NLRB articulated a new joint
employer standard that expanded potential liability for any
employer that uses workers employed by another company through
contractor, staffing, and other arrangements. Under the
Browning-Ferris standard, an employer that uses temporary
workers through a staffing agency can be held responsible for the
staffing agency's labor law violations simply because it
possesses the potential authority to determine the terms of
conditions of employment of the temporary workers. The old standard
required that an employer actually use that authority to make
actual decisions over another business's workers to be subject
to joint employer liability.
Suffice it to say that the NLRB's Browning-Ferris
decision has drawn the ire of employers from a wide range of
industries. Many commentators believe the new standard is vague and
makes it virtually impossible for employers to avoid liability just
by using a staffing agency or contractor workers.
While this battle plays out, there are a number steps that
employers should take to minimize potential joint employer
liability. Employers should be as "hands-off" as possible
when dealing with another company's workers. With respect to
those workers, employers should not:
Make or influence hire, fire, or
Manage, supervise, train, or
Set wages; or
Provide an employee handbook or other
written work rules.
Employers may exert "quality control" by specifying
what needs to be accomplished (as opposed to how the work must get
done), but they should not get involved in the sort of human
resource management decisions listed above.
Any relationship with a staffing agency or supplier of contract
labor should be in writing. Those agreements should clearly explain
the responsibilities and authority of both entities. Issues that
should be addressed include specifying which entity is the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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