Husch Blackwell's Tom Godar of the Labor Law Insider welcomes two new experts as they discuss the shifting standards for joint employer status and the significant impact they can have upon employers, both union and union-free. Tyler Hibler, a labor and employment expert with significant litigation experience, shares his insights from the Husch Blackwell Kansas City office, while Tracy Wolf, a partner with the Husch Blackwell Dallas office, shares her extensive experience in labor and employment counsel and litigation. These two briefly describe joint employer analysis not only under the National Labor Relations Act, but in contrast to the different standards employed under the Fair Labor Standards Act, Title VII, and federal tax and other laws. The Insiders also remind employers that the joint employer review differs as well under various state laws, such as unemployment compensation and worker’s compensation. This sets a whole series of traps for the unwary employer which might think that it has no responsibility for those individuals performing services at the workplace, only to discover that the law deems those individual employees and agents of the business. 

Tyler emphasizes that all these laws start with the basic premise that some level of control by the reputed joint employer is the center piece of any analysis. However, it is at that point that special attention must be paid to the tests and standards under the National Labor Relations Act. Tracy offers a brief history of joint employment standards and brings us to the rulemaking of the Trump administration in 2020 that was seen largely as employee friendly and created a framework that called for actual control of activities by the joint employer. 

In contrast, the Biden Board has initiated rulemaking only two years later that would significantly change the landscape. The largest significant change would not rest on actual control maintained by the employer, but would assess the potential ability to control aspects of the individual’s work life, such as performance, evaluation or compensation. This new standard could significantly affect the identification of those who can be represented in collective bargaining, who can participate in union elections or whose concerted activity could be protected under the National Labor Relations Act. Individuals and unions could claim unfair labor practice by an employer who thought that these persons were only subcontractors or the employees of a temp-to-hire or temporary employment arrangement. In this podcast, our Insiders begin to share some of those consequences. 

In our follow-up Labor Law Insider podcast on this subject, Tracy and Tyler not only flesh out some of the significant consequences that will occur as a result of this change (and it is clear that this change will likely take place as the rule becomes adopted, probably with only very modest variations), but also what steps an employer might take to guard itself against the unintended consequences of being engaged in joint employer status. Enjoy this podcast, and please be sure to listen to the concluding podcast coming soon.