Joint Employer Standard Under the NLRA


The ABC-opposed and House-passed PRO Act (H.R.20/S.567)   includes a provision that dramatically expands the joint-employer standard under the National Labor Relations Act.

On Sept. 6, the National Labor Relations Board announced a new joint employer proposed rule, which would rescind and replace the ABC-supported 2020 final rule on joint-employer status under the NLRA. As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

On Sept. 29, ABC joined the Coalition for a Democratic Workplace and several other organizations in urging the NLRB to extend the Nov. 7 comment period deadline by 60 days.

On Oct. 14, the NLRB announced it is extending the comment deadline on the proposal from Nov. 7 to Dec. 7 in order to allow sufficient time for parties to file initial comments.

On Oct. 20, ABC participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the proposal. ABC expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners.

On Dec. 7, ABC submitted comments to the NLRB and argued that the new proposal will greatly expand joint-employer liability by trying to make indirect or even just reserved, unexercised control sufficient to trigger joint-employer status. This overbroad joint-employer standard will have an adverse impact not only on our member contractors but also on the overall economy.

Further, the proposal will cause confusion and impose unnecessary barriers and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.

While a final rule was expected in August 2023, it has not yet been issued.

Desired Outcome

ABC urges the NLRB to withdraw the new proposed rule and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status.

ABC supports the Save Local Business Act (H.R. 2826/S. 1261) introduced on April 26 by Sen. Roger Marshall, R-Kan., and Rep. James Comer, R-Ky., to make clear that an employer may be considered a joint employer in relation to an employee only if the employer directly, actually and immediately exercises significant control over the essential terms and conditions of employment. ABC joined a coalition in support of the legislation.