When the National Labor Relations Board (NLRB) recently issued a new rule clarifying its position on joint employers, many construction industry groups expressed relief. But while the new rule does help clear up questions about the NLRB’s definition of joint employers, it is only one of several factors companies must consider as they work out the roles and responsibilities of contractors and subcontractors on job sites.
Cause of Concern
Construction projects naturally involve collaboration among contractors and subcontractors, but the amount of control contractors actually exercise over their subcontractors’ employees can vary. If regulators decide a contractor is actually a “joint employer,” both companies could be jointly liable for compliance with various labor regulations including collective bargaining obligations.
For years, the NLRB held that, to be considered a joint employer, a company had to exercise “direct and immediate” control over another company’s workers. In deciding a 2015 case, however, the NLRB expanded the joint employer rule and applied it to entities that have only limited or indirect control over the other company’s employees.
The 2015 case involved one company’s use of a temporary staffing agency, but the NLRB’s shift in position raised questions about other contractual relationships, such as franchiser-franchisee operations, and the contractor-subcontractor relationship in the construction industry.
New NLRB Standard
The NLRB recognized its decision in the 2015 case unsettled the law in this area, so it set out to make clarifications. In February of 2020, it issued a new final rule (as opposed to a case decision) that essentially restored its previous position.
The new rule says that a company is considered to be a joint employer of another company’s employees only if the two companies share control over the “essential terms and conditions of employment.” It defines these terms and conditions as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.
It goes on to state specifically that to be considered a joint employer a company must possess and exercise “substantial direct and immediate control” over one or more of these essential terms. Indirect control, or control that is allowed by a contract but never actually exercised, does not by itself qualify a company as a joint employer.
Other Agencies’ Standards
Because the NLRB is an independent agency, its new rule applies only to cases it enforces, which involve collective bargaining agreements, strike activity, or related labor practices. Other regulatory agencies define joint employers in completely different terms.
For example, after several conflicting federal appeals court rulings following the NLRB’s 2015 shift, the Department of Labor (DOL) produced its own version of the joint employer rule under the Fair Labor Standards Act. The new DOL rule, which went into effect in March 2020, says a company is considered a joint employer if it exercises the power to:
- Hire or fire the employee,
- Supervise and control the employee’s work schedule or conditions of employment,
- Determine the employee’s rate of pay and method of payment, and/or
- Maintain the employee’s employment records.
Although the new DOL rule applies to various laws the department enforces, such as the Family and Medical Leave Act, and the Americans with Disabilities Act, it is not altogether clear how it will affect other aspects of employment law – such as discrimination claims handled by the Justice Department or workers compensation cases that are handled at the state level.
Meanwhile, the Occupational Health and Safety Administration (OSHA) takes a somewhat different approach, recognizing that responsibility for worker safety quite often involves multiple employers. OSHA therefore classifies an employer as:
- Controlling employer – the company with general supervisory authority and power to either correct hazards or direct others to do so
- Creating employer – the company that creates the hazard
- Exposing employer – the company whose employees are exposed to the hazard
- Correcting employer – the company responsible for correcting the hazard
Most OSHA multi-employer citations are issued to the controlling employer, typically a general contractor or facility owner, but in some circumstances all four types of employers could be cited for the same violation. With so many recent variations of the joint employer rule, contractors and subcontractors alike should review their current contract language with a qualified professional to determine if changes need to be made.
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