When the National Labor Relations Board (NLRB) took action that may spell the end for the Browning-Ferris joint employment standard, not many in the employment law field were surprised.
The Republican-controlled board's ruling in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co indicated that it would eventually move forward in reversing Browning-Ferris, Dana Kravetz, managing partner at Michelman & Robinson LLP, told HR Dive in an interview.
But it took months for the NLRB to reach this point, having to wait for the confirmation of one board member while dealing with the controversy surrounding the past connections of another. At this point, employers can be assured that they're seeing the end of the Browning-Ferris standard, Kravetz said, but that doesn't mean there's time to sit back and relax.
"This should stick," Kravetz said, "and if it does, then it's really time to get back to the basics of training."
What the new rule said
In its Notice of Proposed Rulemaking (NPRM), NLRB centered the determination of putative joint employment on whether or not employers "possess and actually exercise substantial direct and immediate control" over essential terms and conditions of employment of another employer's employees. Those terms can include hiring, firing, discipline, supervision and/or direction. What's more, a joint employer's "direct and immediate control" is not "limited and routine," according to the NPRM.
That definition provides clarity to employers looking to determine whether they actually possess the type of direct control to which NLRB refers, Kravetz said, but compliance with the new rule is a case-by-case proposition with potential pitfalls in day-to-day implementation: "It's the application that has always been the biggest concern."
Kravetz illustrated the problem with the example of a general manager at a hotel that outsources a valet service. If the manager notices that the valet employees are on break in the middle of a busy part of the day, with multiple guests coming and going, can he or she raise the issue of restructuring break times?
As it turns out, the action may go beyond the legal bounds. "If I, the manager, do say something, I exert direct control," Kravetz said. "I can come up with a slew of scenarios, and people would say, 'you're kidding me.'"
Focus on 'the gray'
But it's an opportunity to realize the importance of managerial training that Kravetz called an "underused and underutilized concept." In order for it to work in the joint employer context, however, employers need to use real-life scenarios, anticipating areas of uncertainty.
The first piece of the process is figuring out how to deliver training; depending on the structure of the workplace, HR might determine whether it needs to be daily, weekly or at some other interval. Medium is also important, Kravetz said, as managers might prefer to learn on paper, in a one-on-one conversation or in a group presentation. Counsel may also want to look at how important the training is within the broader needs of a particular workforce, so as to determine where joint employer compliance fits within the organization's training budget.
"Then I want to work within that: what's allowed, what's not and what's gray?" Kravetz said. "Focusing on the gray is where people need to spend their time."