first, “essential terms and conditions of
employment,” means “wages, benefits,
hours of work, hiring, discharge, discipline,
supervision, and direction” — and nothing
else. In other words, as the NLRB explains in
the preamble, that list is exhaustive, and no
other terms or conditions will be considered
as “essential” for purposes of establishing
joint employer status.
The second, “substantial direct and
immediate control,” means that which has a
“regular or continuous consequential effect”
on at least one essential term or condition
of employment, such as when, with respect
to another entity’s employees, the putative
joint employer actually:
■ Determines wages, salary, or rates of pay;
■ Determines the type and level of benefits
provided or offered;
■ Determines work schedules or work
hours, including overtime;
■ Makes decisions to hire, fire, or impose
discipline;
■ Provides instruction on how to perform
their work;
■ Issues employee performance appraisals;
or
■ Assigns individual work schedules,
positions, and tasks to particular
employees.
the NLRB explains, if an entity is considered
a joint employer of another entity’s workers,
then it will be obligated to participate in
collective bargaining over the terms and
conditions of employment and may be
found jointly liable for the other entity’s
unfair labor practices, and any picketing
activity directed against it will be considered
primary and lawful (rather than secondary
and unlawful).
To the extent that the NLRB’s new rule
provides greater clarity as to when and
under what circumstances joint employer
status may be imposed on two separate
business entities — thus triggering joint
liability for collective bargaining and other
direct labor relations obligations — it is a
welcome development for the business
community.
What Does This All Mean for Employers?
A finding of joint employer status can
impose significant compliance obligations
and legal risks on the entities involved. As
JANUARY-FEBRUARY 2020 • DITCHMEN
17