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NLRB Proposes Major Changes to Joint Employment Standard
Sep. 13 2018

NLRB Proposes Major Changes to Joint Employment Standard

Topics: Union-Management Relations

Earlier today, the National Labor Relations Board announced that it will publish a Notice of Proposed Rulemaking tomorrow in the Federal Register regarding its joint-employer standard. Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if (a) it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment; and (b) has done so in a manner that is not limited and routine. 

Currently, joint employment is governed by the Browning Ferris NLRB decision, issued under the Obama Board.  This standard allows for joint employment status to be found even where no actual control has been exercised, and merely where potential control exists. 

This newly proposed rule, if adopted, will make it much more challenging for employees and unions to prove a joint employment relationship for purposes of unionization and other related National Labor Relations Act issues.  This is a welcome development for employers, and particularly for franchised organizations and staffing organizations. 

For more information, you can click here.  We will continue to keep you posted as this proposed rule moves forward in the rulemaking process. 

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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