Ditchmen • NUCA of Florida Ditchmen -Jan./Feb. 2020 | Page 17

codetermine the employees’ essential terms and conditions of employment,” as demonstrated by the actual exercise of “substantial direct and immediate control over one or more essential terms or conditions” of employment. In other words, joint employer liability will not exist when an entity exerts merely indirect authority over the direct employer’s workers, or contractually reserves the right to control the terms of workers employed by another entity, but never exercises that right. In addition, the quality of control exercised matters once again, with joint employer liability limited to those actions that tangibly and substantially impact the workers in question, such as hire, fire, benefits, and pay-setting decisions, as well as determinations about what work the employee is to perform, how, and when. The new rule is slated to go into effect on April 27, 2020 — unless after a mandated congressional review the NLRB is required to “establish the new effective date or to withdraw the rule.” Joint Employer Liability Under the NLRA The term “joint employer” is not defined in the NLRA. Rather, the standard for evaluating when two business entities are joint employers in the labor- management context derives from common law principles developed over years of NLRB adjudications and case decisions. In general, two or more separate entities may be considered joint employers if they share some tangible control or authority to determine the working conditions or other terms of an individual’s employment. For at least three decades before 2015, the NLRB consistently held that indirect control over a worker’s employment conditions, or direct and immediate supervision that is “limited and routine,” is not enough to impose joint employer liability on the business entity in question. In Browning-Ferris Industries of California, however, a divided NLRB held that joint employer status may be established even when the putative employer’s control over another entity’s employees was indirect, limited and routine, or contractually reserved, but unexercised. The NLRB majority’s view at the time was that the new, relaxed standard more accurately captured the “economic realities” of the workers’ relationships with these entities and would allow for “meaningful collective bargaining” over the terms and conditions of their employment. The Browning-Ferris joint employer standard was roundly criticized by the business community as replacing what had been a reasonably administrable standard with one that was bound to cause confusion and spur litigation over its meaning. Although the D.C. Circuit ultimately allowed the NLRB’s new test to stand, it sharply criticized the NLRB’s lack of clarity, especially with respect to what kinds of decisions over which a putative employer possesses reserved authority or indirect control would be sufficient to trigger joint employer liability. Rather than address those issues in a new case decision, the NLRB elected instead to exercise its rulemaking JANUARY-FEBRUARY 2020 • DITCHMEN 15