Federal Bill Introduced to Address NLRB’s Recent “Joint Employer” Ruling

By Wally Irvin | September 23, 2015

On September 9, Tennessee Senator Lamar Alexander (R), along with 35 co-sponsors in the Senate and 25 co-sponsors in the House, filed legislation to force the NLRB to return to the decades old “joint employer” standard.  The NLRB overturned the prior standard on August 27 in Browning-Ferris Industries of California.  As recently discussed by LT lawyer Jason Pannu in this blog post, the NLRB abandoned the prior standard and stated “[t]he Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matter governing the essential terms and conditions of employment,” either directly or indirectly.  The actual exercise of authority is not controlling, as long as the employer possesses or reserves the right to do so.  Accordingly, any contractual language serves as crucial evidence.

The construction industry widely criticized the NLRB’s ruling, believing the new decision will “subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have, to potential liability for unfair labor practices and breaches of collective bargaining agreements, and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts and picketing.”  The new bill was supported by the Associated Builders and Contractors, amongst others, which will hopefully restore stability for contractors, subcontractors and their employees by returning to the prior standard.

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