NLRB finalizes rule on joint-employer status
The National Labor Relations Board today issued a final rule for determining joint-employer status under the National Labor Relations Act, when separate organizations must bargain with a union jointly. Under the new standard, effective Dec. 26, NLRB said an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more essential terms and conditions of employment, defined as: wages, benefits and other compensation; hours of work and scheduling; the assignment or supervision of duties; work rules and directions governing the performance of duties and grounds for discipline; employment tenure, including hiring and discharge; and working conditions related to employee safety and health.
The final rule explicitly states that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) or exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer. This means that either indirect or reserved control may stand alone as the basis for finding a joint-employer relationship, and the existence of either — without regard to the extent of the reserved or indirect control — indicates joint-employer status.
The board declined to accept the AHA’s recommendation that it withdraw or at least exempt hospitals from the proposed rule. While acknowledging specific concerns raised by hospital group commenters, like the AHA, the board states in the final rule’s preamble that, “We see no clear basis in the text or structure of the Act for exempting particular groups or types of employers from the final rule, nor do we believe that the Act’s policies are best served by such an exemption. That said, we share these commenters’ general views that the proper application of the final rule in particular cases will require the Board to consider all relevant evidence regarding the surrounding context.”