NJBIA's Public Policy Forum: The Road to Recovery REGISTER

Jackson Lewis sorts through the latest developments over what, exactly, constitutes a joint employer.

It’s a big deal for franchise businesses, temp agencies and their clients because if they are deemed joint employers, they can be held liable for the actions of what the other companies do.

Under the Obama Administration, the National Labor Relations Board (NLRB) dramatically expanded the definition of joint employer, but under the Trump presidency, the board has been trying to move the definition back to where it was before 2015.

Then the federal appeals court got involved. The case is  Browning-Ferris Industries of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018).

“The Court affirmed, as consistent with common law, ‘the Board’s articulation of the joint-employer test, which includes consideration of a putative joint employer’s reserved right to control and its indirect control over the employees’ terms and conditions of employment,’” Jackson Lewis writes. “However, the Court reversed the board’s application of the indirect-control element to the extent it did not distinguish between indirect control the common law of agency considers inherent in ordinary third-party contracting relationships, and indirect control over the essential terms and conditions of employment.”

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