On June 21, 2022, the National Labor Relations Board (NLRB) released its spring 2022 rulemaking agenda. The agenda shows that the NLRB may address two important topics under the National Labor Relations Act (NLRA) through the administrative rulemaking process:
(1) Joint-Employer Status
(2) Election Protection
Joint-Employer Status
True to its name, joint-employer status means that two or more entities share or co-determine essential terms and conditions of workers’ employment, including hiring, firing, discipline, and supervision. This situation most frequently arises in relationships between contractors and subcontractors, franchisors and franchisees, parent corporations and subsidiaries, and staffing agencies and their business clients.
When joint-employer status applies, the affected entities can be held independently or collectively responsible for ensuring employee rights and employer obligations under the NLRA. This means that if one entity is accused of committing an unfair labor practice, the other entity can face liability, irrespective of whether the other entity participated in the alleged practice.
Joint-employer status has been a hotly contested issue. As a result of administrative rulemaking during the Trump administration, joint-employer status currently applies when two or more entities possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment. During the latter years of the Obama administration, joint-employer status applied when two or more entities simply had the ability to control employment terms and conditions (regardless of whether they exercised that ability). If the NLRB creates a new joint-employer rule, it will probably revert to this employee-favorable standard.
Election Protection
Election protection covers a broader series of issues in the union election context, including:
- The ability of pending unfair labor practice charges to block the election process
- The impact of an employer’s voluntary recognition of a union to bar subsequent representation petitions
- The formation of collective bargaining relationships in the construction industry
These standards were similarly amended in favor of employers during the Trump administration, through the administrative rulemaking process. Likewise, if the NLRB creates new rules on these topics, the pendulum will likely swing back in favor of employees.
