On September 13th, the National Labor Relations Board (NLRB) announced that it will propose a new joint employer rule that represents a relaxation of the current standard for determining if businesses are joint employers.  Under the current rule, known as the Brown-Ferris rule, the definition of joint employer is expansive, so that an employer having only indirect or potential control over another employer’s workers can be found to be a joint employer. 

Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment, and it has done so in a manner that is not limited and routine.  Indirect influence over the other employer, or reserving authority in a contract to exercise authority over the other employer, would no longer be sufficient to establish a joint employer relationship.

It will come as no surprise to California employers that the rules on joint employment in California are a bit more tricky.  In California, employers can be held to be joint employers when an employer has the ability to prevent the worker from performing services, or when an employer or person  exercises control over the wages, hours or working conditions of any person, directly or indirectly.  Given that there are a variety of factors involved, California employers should be careful to properly analyze any potential joint employer situation before reaching any conclusion.  

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked.  So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again.  This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing.  No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits).  But feel free to contact us with your questions and comments—who knows, we might even answer you.  And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry).  Big news: Copyright 2017.  All rights reserved; yep, all of them. If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it.  If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.