The 80s Are Back, According to the NLRB

On September 14, 2018, the National Labor Relations Board (NLRB) announced in the Federal Register a proposed rule to return its joint-employer standard to its 1984 standard — a standard that stood until 2017. It’s returning to the days of Footloose dancing, Sixteen Candles high school sweethearts, Karate Kid champions, and the principle that a joint-employer of another’s employees applies only if:

  • The employer possesses and exercises substantial, direct, and immediate control over the essential terms and conditions of employment; and
  • The employer has done so in a manner that is not limited and routine.

Under the NLRB’s proposed rule, indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Why Does This Matter to Your Business?

You may be asking, “What does a 1984 image of Kevin Bacon dancing in a barn with a Sony Walkman have anything to do with my business?” (By the way, I heard it wasn’t actually him dancing in that scene but that is completely unverified — so it’s off the record.)

Okay, 1980s hit movies don’t have anything to do with your business, but according to the NLRB, re-establishing the 1984 standard best meets the intent of the National Labor Relation Act’s joint-employer doctrine by not drawing third parties, who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.

What Happens Next?

The NLRB invites public comments on all aspects of the proposed rule; however, they must be received on or before November 13, 2018. Feel free to peruse our prior blog articles and law alerts on the joint-employer issue because apparently it is in constant flux. (I’d make a Back to the Future reference here but that movie wasn’t released until 1985.)

And here’s the proposed rule. Have at it . . . because you gotta cut loose.

About Samantha Yurman, JD

Samantha Yurman is one of ThinkHR's legal editors. She is a licensed attorney in California and Florida with over 16 years of experience researching and analyzing human resources legislation and law. Samantha uses her expertise to translate highly technical legal topics into usable information for our clients.