How can a business survive a shift in joint employer standard?

In business as in biology, the inexorable rule is 'adapt or die'

In July, InsideCounsel featured an article about proposed changes to the joint employer standard in the NLRB’s pending decision in Browning-Ferris Industries of California, Inc., et al. In Browning-Ferris, the NLRB general counsel advocated outright abandonment of the Laerco/TLI test and adoption of key changes to significantly broaden the reach of the joint employer doctrine. First, elimination of the distinction between direct, indirect, and potential control over working conditions: i.e., potential control is enough. Second, joint employer status should exist where “industrial realities” make the client company essential for meaningful bargaining: i.e., large client companies should be presumed to be joint employers because of their economic power.

On July 29, the NLRB Office of the General Counsel announced that, after investigating claims brought by employees against McDonald’s Corporation and its franchisees, if the parties cannot settle the claims, formal complaints will be filed listing McDonald’s Corporation as a joint employer. Currently, there are 43 pending cases where McDonald’s Corporation could be listed as a joint employer. This announcement is another salvo in the government’s all-out assault on the joint employer standard.

Contributing Author

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Marilyn A. Pearson

Marilyn A. Pearson is a partner in the Chicago office of DLA Piper. Pearson advises and represents clients on a broad range of traditional labor...

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