In recent years, there has been increasing attention to the standard applied by regulators when determining when two unrelated business entities share sufficient control over a group of employees such that they may be considered "joint employers." On November 20, 2019, the federal government released its Unified Agenda of Federal Regulatory and Deregulatory Actions - Fall 2019 ("Agenda"), which reports on the actions administrative agencies plan to issue in the near and long term. According to the Agenda, three agencies - the Equal Employment Opportunity Commission ("EEOC"), the National Labor Relations Board ("NLRB"), and the Department of Labor ("DOL") - each plan to issue regulations governing joint employment in the near future. The NLRB and DOL have been working on clarifying this issue within their own spheres for some time, while the EEOC is addressing the issue now for the first time.
Equal Employment Opportunity Commission
According to EEOC's Agency Rule List, the agency plans to clarify its interpretation of when an entity is a covered joint employer under the federal equal employment opportunity laws based on the definitions of the statutory terms "employee" and/or "employer." The EEOC has characterized this rule as a "proposed amendment" to many of the laws the agency enforces, such as the Age Discrimination in Employment Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act. The agency predicts it will issue a notice of proposed rulemaking on this topic in December 2019 and the comment period will extend at least until February 2020, although the deadline could be extended even further once the process is underway.
This announcement came as a surprise considering the EEOC has never before addressed the joint employer standard and did not hint at its plans before the November 20 announcement. Although this is the first time the EEOC will address joint employment and its stance remains somewhat vague, it will not be the first agency to pursue rulemaking on the subject. Both the NLRB and the DOL have been working to clarify this issue for the last year, and both agencies are almost ready to release their final rules.
National Labor Relations Board
As we first reported to you last year, the NLRB has been working to finalize its proposed rule clarifying the joint employer test under the National Labor Relations Act since September 2018. The...