Report: Joint-employer liability rule may be hard to unravel
- Undoing the National Labor Relations Board’s joint-employer rule might not be so easy for the Trump administration, reports Bloomberg BNA. A Washington, D.C. federal appeals court recently heard the NLRB’s argument that an employer with indirect control over a franchise, staffing agency or contractor’s workers shares liability with the hiring contractor.
- Richard Griffin, NLRB general counsel, told Bloomberg that if the U.S. District Court of Appeals for Washington, D.C., decides Browning-Ferris v. NLRB in the board’s favor, a number of resolutions could apply. The decision could permanently seal the rule or just make the NLRB’s interpretation of the rule permissible but not mandatory.
- The Trump administration is expected to fill two board vacancies, leaving the Republican party with a three-to-five majority.
The court heard arguments earlier in March, and a decision is expected soon.
In the meantime, employers can look to the Jack in the Box court victory in deciding how to comply with the joint-employer rule. The fast-food restaurant chain beat its lawsuit by passing the “economic reality” test. An employer has joint liability if 1) the employer has hire and fire power over workers; 2) supervises and controls workers’ schedules; 3) determines pay rates and methods; and 4) keeps employment records.
The Trump administration has promised deregulation, so its likely they will attempt to pare back any rules brought into being under the Obama administration. It's likely that the NLRB will lean pro-business during Trump's term. His DOL nominee, Alexander Acosta, will also likely limit regulatory power.