On Jan. 28, ABC submitted comments on the National Labor Relations Board’s joint employer proposal, which would establish an updated standard for determining joint-employer liability under the National Labor Relations Act. Additionally, the ABC-led Coalition for a Democratic Workplace submitted comments in support of the NLRB’s proposal.

In 2015, the NLRB uprooted more than 30 years of precedent and issued a decision in Browning-Ferris Industries that greatly expanded joint employer liability under the NLRA.  

Under the NLRB’s 2018 proposal, an employer may be found to be a joint employer only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.

In its comments, ABC expressed support for the proposed rule and stated its disapproval for portions of a recent D.C. Circuit Court of Appeals’ opinion that partially affirm the previous BFI test under common law principles. As ABC argued in its comments, it is vital to the continued productivity of the construction industry, one of the primary engines of the nation’s economy, that the board clearly delineate and limit the types of control that will henceforth be treated as creating joint-employer status under the NLRA. 

ABC has been a vocal opponent of the expanded definition of joint employer that was created by the board’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

ABC will continue to provide updates on the NLRB’s joint-employer standard in Newsline.