AHA, others urge court to reject NLRB's expanded joint employer test

The AHA and seven other national associations today urged the U.S. Court of Appeals for the District of Columbia to reject the National Labor Relations Board’s expanded joint employer test, outlining a range of adverse impacts in the franchising, construction, health care, retail and hospitality sectors. Announced last August in the Browning-Ferris Industries case, the expanded test makes an organization a joint employer if it exercises merely indirect control over the terms and conditions of another firm’s employees, or simply possesses, but never exercises, the ability to control such terms. “[T]he NLRB’s test is tone deaf to the practicalities of American business and threatens to undermine a broad range of business relationships which are vital to the nation’s economy,” the associations said in a friend-of-the-court brief. “Further, the [new] standards…are broad enough to cover virtually any business relationship, and the murky guidance provided in the majority opinion makes it virtually impossible for businesses to apply…with any confidence as to whether they are getting it right.” Joining AHA on the brief are the Associated Builders and Contractors, Associated General Contractors of America, American Hotel and Lodging Association, International Franchise Association, National Association of Home Builders, and National Retail Federation.