Make Your Voice Heard On NLRB’s Joint Employer Standard

As Connecting the Dots reported in September, the National Labor Relations Board (NLRB) issued a draft proposed joint employer standard that, if implemented, will be used to determine whether more than one entity controls the terms and conditions of an employee, and thus, is responsible for the employee under the National Labor Relations Act (NLRA).

Specifically, the new regulation would undo the standard put into place by the Trump administration in 2020 that maintained the joint employer standard must focus on whether a putative employer exercised “actual control” over the terms and conditions of employees.

In contrast, the Biden administration’s proposed rule states that “two or more employers of the same particular employees are joint employers of those employees if the employers share or codetermine those matters governing employees’ essential terms and conditions of employment.”

Because this measure is a radical expansion of the standard, the Coalition for a Democratic Workplace (CDW), of which MSCI is a member, has created a grassroots toolkit for stakeholders to use to tell the NLRB to abandon the new proposal.

The toolkit provides an explanation of the rulemaking and a ready-to-send letter to the NLRB explaining why the standard would be disastrous.

Additionally, since NLRB only provided 60 days for stakeholders to file comments on their joint employer rulemaking, CDW has filed an extension request asking the NLRB to extend the comment period an additional 60 days. The extension request explained, “Given the expansive nature of the proposed standard and the complexity of issues relating the standard’s impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.”

One final note: the Small Business Administration is hosting a roundtable on the NLRB’s joint employer rulemaking. The roundtable will be on Thursday, October 20, from 1-2:30 p.m. ET and will gather specific small entity input on the proposed rule. If you would like to attend, RSVP to Janis.Reyes@sba.gov. Reyes will then forward roundtable participation details. Read more about this proposed rule here.