NLRB Considers Changing the Joint-Employer Standard

The NLRB announced that it is considering changing the joint-employer standard.  Under the current rule, two companies are “joint employers” when the “two separate entities share or codetermine those matters governing the essential terms and conditions of employment,” such as  “hiring, firing, discipline, supervision, and direction.”  The Reagan Board established this rule in 1984 in TLI, Inc., 271 N.L.R.B. 798.

Under TLI, Inc., one company can avoid bargaining with a union by subcontracting work or using a temp agency so long as the two do not codetermine the “essential terms and conditions of employment.”  The NLRB’s reconsideration of the joint-employer standard is significant because it could more broadly require a company to bargain with employees of a subcontractor. 

In reconsidering TLI, Inc., the Obama Board has invited amici (friends of the Board) to file briefs on the following questions:

• Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services (the employer in question) the sole employer of the petitioned-for employees?;

• Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?; and

• If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

For more information or to learn more information about answering the above questions, please contact your labor law counsel. 

---