Search form

U.S. Lawmakers Introduce Legislation to Restore Definition of 'Joint Employer' under National Labor Relations Act

By Philip B. Rosen
  • September 11, 2015

Senator Lamar Alexander (R., Tenn.) chairman of the Senate Committee on Health, Education, Labor, and Pensions and Representative John Kline (R., Minn.), chairman of the House Committee on Education and the Workforce, introduced legislation to curtail the National Labor Relations Board’s expansive new standard for determining “joint employer” status set forth Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).

Before Browning-Ferris, a joint employer relationship existed only where “two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” The essential element in this analysis is “whether a putative joint employer’s control over employment matters is direct and immediate.” Airborne Express, 338 NLRB 597, 597, n.1 (2002). Browning-Ferris broadened the standard to include employers who may only affect employees’ terms and conditions of employment indirectly. (For additional information regarding Browning-Ferris, please see our article, Labor Board Sets New Standard for Determining Joint Employer Status.)

The proposed legislation, "Protecting Local Business Opportunity Act," S. 2015, H.R. 3459, 114th Cong. (Sept. 9, 2015), would amend the National Labor Relations Act’s definition of employer to restore it to pre-Browning-Ferris status. The amendment states: “Notwithstanding any other provision of this Act, two or more employers may be considered joint employers for purposes of this Act only if each shares and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate." The bills' sponsors stated that the legislation is intended to protect small businesses and entrepreneurs and to restore policies in place long before the Board’s decision, “the very same policies that served workers, employers, and consumers well for decades.” Lamar Alexander, Press Release (2015), Legislation Will Roll Back Labor Decision that “Threatens to Steal the American Dream from Owners of the Nation’s 780,000 Franchise Businesses and Millions of Contractors.

The bills were referred to the Senate Committee on Health, Education, Labor, and Pensions and House Committee on Education and the Workforce, respectively, for consideration.

Please contact the Jackson Lewis labor lawyer with whom you regularly work if you would like to discuss the implications of Browning-Ferris and the proposed legislation in more detail.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

September 4, 2018

Proposed New York City Legislation Aims to Reduce Incidents of Late Payments to City Contractors

September 4, 2018

A bill to amend New York City’s contracting process to improve the promptness of city agency payments to contractors has been introduced in the New York City Council. The bill’s sponsors introduced the measure following a news report on the city’s history of late payments to some social service vendors. Inform, Report Intro 1067... Read More

August 24, 2018

New York State Issues Draft Guidance on Required Sexual Harassment Prevention Policies and Training

August 24, 2018

The State of New York has issued draft guidance for employers on the mandatory sexual harassment prevention policies and annual employee training required by legislation passed earlier this year. Starting October 9, 2018, the enacted legislative package requires, among other things, that employers in New York adopt the state’s model... Read More

August 21, 2018

Top Five Labor Law Developments for July 2018

August 21, 2018

Business lobbyists reportedly are urging the Trump Administration to not re-nominate National Labor Relations Board (NLRB) Member Mark Gaston Pearce (D) for a third term. Pearce’s term at the five-member Board is scheduled to expire on August 27, 2018. Pearce has drawn the ire of business groups for what many believe to be an anti-... Read More