Employers around the U.S. are also paying close attention to the issue of joint employment, which is when two or more businesses are found to be co-employers of the same workers. If two businesses are deemed joint employers under the Fair Labor Standards Act (FLSA), they share liability for any wage and hour violations. If deemed joint employers under the National Labor Relations Act (NLRA), they share liability for labor law violations and collective bargaining requirements.
As many of you know, the National Labor Relations Board (NLRB) and the U.S. Department of Labor (DOL) have each recently proposed regulations to update their standards.
Last year, the NLRB proposed a rule to clarify its joint employer test under the NLRA by reversing a standard set in the Browning-Ferris case. The NLRB's rule would reinstitute a prior standard under which an employer is a joint employer only if it has "direct and immediate control" of another's employees.
And earlier this year, the DOL proposed an update to its standard for analyzing joint employment under the FLSA. Under the DOL's proposed rule, joint employment should come down to whether a business's actions actually affect the terms and conditions of workers' employment.
Although we are not sure exactly when the final rules may be issued by the NLRB or the DOL, the comment period on both proposed rules expired earlier this year. This is considered to be a high priority for both agencies so we will continue to look out for both.
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