Michael Sullivan, Principal and chair of the firm's Labor & Employment Group, is quoted in "Restoring Previous Joint Employer Standard Could Bring Clarity," published in the Sept. 25, 2018, edition of Business Insurance.
The article concerns a proposed National Labor Relations Board ruling that would restore the previous joint employer status standard and would remove much of the uncertainty that the current rule has created for employers.
In its 3-2 decision in Browning-Ferris Industries of California Inc. in 2015, a Democrat-controlled NLRB overturned the standard in place since 1984 that firms must have “immediate and direct” control over a worker to be considered a joint employer. It held instead that a company need have only indirect control of a worker and not even exercise that control to be considered a joint employer.
The National Labor Relations Board proposed the new rule in September, and the public has been asked to submit comments on the proposal by Nov. 13. Experts say they expect that while there may be some modifications, the final ruling will essentially be approved as proposed.
The rule affects franchisor-franchisee relationships as well as firms that use third-party vendors, including staffing firms, to fill positions peripheral to their focus, such as cafeteria workers.
“The new standard was so amorphous and made the issue so uncertain that, particularly for franchises and companies with lots of affiliates, it made life too unpredictable for their business model," Mr. Sullivan explained. “How you measure how someone could or might do something is always very challenging from a legal perspective when it hasn’t happened."