Employers around the U.S. are also paying close attention to the issue of joint employment, which is when two or more businesses are found to be co-employers of the same workers. If two businesses are deemed joint employers under the Fair Labor Standards Act (FLSA), they share liability for any wage and hour violations. If deemed joint employers under the National Labor Relations Act (NLRA), they share liability for labor law violations and collective bargaining requirements.
As many of you know, the National Labor Relations Board (NLRB) and the U.S. Department of Labor (DOL) have each recently proposed regulations to update their standards.
Last year, the NLRB proposed a rule to clarify its joint employer test under the NLRA by reversing a standard set in the Browning-Ferris case. The NLRB's rule would reinstitute a prior standard under which an employer is a joint employer only if it has "direct and immediate control" of another's employees.