Ditchmen • NUCA of Florida Ditchmen -Jan./Feb. 2020 | Page 16

NLRB’s Joint Employer Rule Signals a Welcome Return to Sensible Workplace Regulation By Rae T. Vann For countless companies that contract with other businesses for human capital or other services in which the employees of one entity are deployed to perform work for another, there is always a risk that the misdeeds of one will also land the other in trouble. For instance, if Company A enters into a contractual arrangement with Company B to provide on- site contingent staff support, and an employee of the former harasses an employee of the latter, can both be sued and held liable for discrimination? In the union context, can a group of Company B’s employees placed in a long-term assignment working alongside unionized workers demand to be recognized by Company A? Imposing joint employer liability on two business entities can have serious legal and practical workplace compliance and risk mitigation implications. In the federal labor relations context, the joint employer doctrine is critical in determining when a business entity has a legal duty to bargain 14 DITCHMEN • JANUARY-FEBRUARY 2020 with workers directly employed by another business entity and may be liable for that entity’s unfair labor practices or “may be targeted as a primary employer in a labor dispute.” On February 26, 2020, the National Labor Relations Board published a final rule designed to clarify the circumstances under which two unrelated business entities may be considered joint employers under the National Labor Relations Act. The rule effectively overrules a controversial 2015 NLRB decision that purported to expand long- standing precedent in a manner that threatened to expose a substantially larger number of businesses to potential liability as joint employers for NLRA violations than ever before. The final rule adds a new section to the NLRB’s existing regulations devoted exclusively to the subject of joint employer status. It provides that a business may be considered a “joint employer” of another business’s direct employees only if the two entities “share or