Steve Swirsky Quoted in “3 Takeaways from the NLRB's Joint Employer Rule Redux”

The board's proposed revision to its test for deciding whether linked entities are joint employers aligns closely with a standard the agency set out in a since-stricken 2015 decision involving waste recycling company Browning-Ferris. The question arises when workers for businesses such as franchisors and staffing companies seek to organize or file charges with the NLRB accusing their employers of unfair labor practices. If workers are directly employed by a staffing firm but work under terms set by a contract with a client, for example, the board decides whether the client jointly employs the workers with the staffing company.

In Browning-Ferris, President Barack Obama's appointees to the board sought to expand the circumstances in which entities are considered joint employers. The majority ditched a requirement that an entity have direct control over shared workers to be a joint employer, holding that indirect control, even if not exercised, can confer joint employer status.

A Republican majority jettisoned this test in a 2020 rule, holding that an entity is a joint employer only if it holds "direct and immediate" control over certain key job terms, and that control suffices "to permit meaningful bargaining."

Tuesday's proposal largely echoes the Browning-Ferris standard, holding that an entity is a joint employer if it holds or exercises power — "whether directly, indirectly or both" — over one or more of workers' "essential terms and conditions of employment." …

Many Factors in Consideration …

NLRB members John Ring and Marvin Kaplan criticized this approach in a dissent to the decision to propose the rule Tuesday, saying it injects uncertainty into the question of what may be evidence of joint employer status.

Management-side attorney Steven Swirsky echoed the dissent, likening the board's approach to former U.S. Supreme Court Justice Potter Stephens' "I know it when I see it" test for discerning whether alleged obscenity merits censorship.

"[The board is saying] if I don't find these things present in a particular work environment, I'll listen to whatever the petitioning union says creates joint employer status, which is counterintuitive to the idea of rulemaking … to provide clarity and guidance," the Epstein Becker Green member said. …

Employer Challenges Coming …

The Supreme Court's rulings this past term limiting the deference courts give agencies in legal challenges to rules weakens the NLRB's footing, Swirsky added.