On December 10, 2018, National Labor Relations Board (“NLRB” or “Board”) General Counsel Peter Robb released a comment to NLRB Board Members regarding the proposed Joint Employer Rule (“Rule”).  Not surprisingly, Mr. Robb concurs with the NLRB’s attempt to overturn its Browning-Ferris Industries, 362 NLRB No. 186 ruling via the rulemaking process. The reader will recall that Browning-Ferris Industries changed decades of precedent regarding the joint-employer standard and held that an employer could be considered a joint-employer where it maintained “indirect control” over another employer’s employees’ essential terms and conditions of employment. Yet to the surprise of labor-watchers, Mr. Robb argues the Board’s Rule does not go far enough.   

Mr. Robb argues that while the Rule “is an important step in the right direction,” employers would benefit from more “clarity” and guidance regarding its application. Indeed, Mr. Robb contends that the Rule leaves employers guessing as to which employment terms are “essential” when considering whether a putative joint-employer maintains “direct and immediate control” over a group of employees’ “essential terms and conditions of employment.” 

To provide employers with needed guidance, Mr. Robb suggests the Rule should list which “terms and conditions of employment” will be deemed “essential” for purposes of the joint-employer analysis. Mr. Robb argues such factors should include control over 1) the determination of wages and benefits; 2) hiring and firing of employees; and 3) discipline, supervision, and direction of employees. 

Moreover, Mr. Robb argues that the Board’s Rule should make clear that, for an entity to be a joint employer, “that entity must control all listed essential terms and conditions of employment.”  Per Mr. Robb, such a standard is necessary “[g]iven the grave concerns about subjecting an arms-length business partner to a bargaining obligation with another employer’s employees.”  Mr. Robb further emphasizes that a joint-employer finding should be “rare.”

To be sure, Mr. Robb’s comment will not be the final say on the Rule. However, employers should consider the comment to portend good news. With the Board and the General Counsel on the same page regarding the need to revisit and tighten the joint-employer standard, employers that make use of another entity’s employees may soon face less legal risk regarding whether they will be deemed a joint-employer. Stay tuned to Polsinelli at Work for further updates.