NLRB Proposes New Joint-Employer Standard, Rules On Union Apparel

Last week, the National Labor Relations Board (NLRB) simultaneously withdrew the Trump Administration’s NLRB Joint-Employer Rule and proposed to replace it with a new, broader definition of joint-employer. The Trump Administration’s joint-employer standard, finalized in early 2020, determined that an employee is employed by two or more employers and thus both liable for unfair labor practices if the employers share “substantial, direct and immediate” control over employment conditions.

The 2020 standard is far more stringent of a test to apply than what the Obama Administration attempted to codify in 2015, which states that employers are joint-employers if they “share or codetermine those matters governing the essential terms and conditions of employment.” While last week’s proposal attempts to reassert the prior, expanded joint-employer “share or codetermine” definition, it also, as per the Coalition for a Democratic Workplace (CDW), would stretch “the law even beyond the Obama-era BFI standard, explicitly stating that joint employer status could be found if an employer simply “possesses the authority to control (whether directly, indirectly, or both), or exercises the power to control (whether directly, indirectly, or both), one or more of the employees’ essential terms and conditions of employment.”

NRMCA will oppose this proposal; NLRB is accepting comments until November 7. Click here to read the CDW press release.

The NLRB also ruled last week that “employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumptively unlawful, absent special circumstances that justify such a restriction.” The ruling stems from a case involving Tesla, Inc. and the company disallowing display or wearing of union apparel/insignia. Click here to review this NLRB ruling.

For more information contact Kevin Walgenbach at kwalgenbach@nrmca.org.