The National Labor Relations Board (NLRB) on Sept. 6, 2022, issued a proposal to revise its joint employer standard, which took effect in 2020 under the Trump Administration.
The joint employer standard is used to determine when two or more employers share responsibility for the essential terms and conditions of employment over a group of employees. Joint employers are required to negotiate with a union representing those employees and are liable for any violations of the National Labor Relations Act committed by either employer.
NLRB’s proposal would revise the definition of a “joint employer” to be two or more employers that “share or codetermine” employment conditions such as pay, scheduling, workplace safety and employee discipline policies. The proposal goes on to explain that the revised definition would apply to employers that possess the authority to control these employment conditions, regardless of the employer exercising that power.
These issues are a specific concern for the travel plaza industry, where the franchisee model is ubiquitous, and where many companies hire "independent contractors" to provide various services (e.g., fuel delivery, infrastructure maintenance, etc.) for their facilities. NATSO has long argued that employers should be required to actually exercise control of workers to be considered a joint employer.
The NLRB is just one governmental entity reexamining the joint employer standard, and the uncertainty surrounding this body of law is causing tremendous uncertainty and complexity for employers throughout the country. NATSO plans to file comments ahead of the November 7, 2022, deadline and urge NLRB to maintain the joint employment standard currently in place.
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