CDW Comments on Proposed Changes to NLRB Joint-Employer Standard

Washington, D.C. – On January 28, nearly 90 organizations joined comments filed by the Coalition for a Democratic Workplace (CDW) in response to the National Labor Relations Board’s (NLRB) Notice for Proposed Rulemaking (NPRM) containing proposed changes to the joint-employer standard under the National Labor Relations Act (NLRA).

The NLRB’s proposal adopts the long-accepted, practical requirement that the NLRB will find a joint employment relationship under the NLRA where a business or other entity actually exercises control over the essential terms and conditions of another employer’s employees. In doing so, the Board would restore clarity on this important part of the law. In the August 2015 decision in Browning-Ferris Industries (BFI) – the Board created confusion by expanding the standard without defining key terms or providing guidance as to how to implement the changes to the law. The BFI standard created massive uncertainty throughout the business community and drastically expanded the number of business relationships that could trigger joint-employer status, exposing almost every contractual relationship to unwarranted liability. The US Court of Appeals for the D.C. Circuit recently returned the BFI case to the Board, noting the BFI standard lacked clarity.

Our comments today urge the Board to adopt the Proposed Rule but with the addition of clarifying definitions that will enhance predictability and stability of the rule’s application and outline essential terms and conditions of employment that allow for meaningful collective bargaining.