Just before the August recess, the House of Representatives introduced the Save Local Business Act, which would amend the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) to restore what they consider "the commonsense definition of what it means to be an employer."
The bill, which has bipartisan support, would get rid of the revised-joint employer standard articulated in the 3-2 Browning-Ferris Industries decision, in which the National Labor Relations Board returned to its pre-1984 standard for determining joint-employer status under the NLRA. In that decision, it determined that two or more employers may be consider "joint employers" if they exercise control over employees either directly or indirectly. It was the "indirectly" aspect that caused the most controversy and the NLRB offered little guidance on how to assure non joint employer status. Currently, Browning-Ferris is under appeal. Read MRA’s previous Inside HR article for further details.
Since the Browning-Ferris decision, many businesses have argued that the ruling created an "extreme joint-employer scheme" that increased operational expenses and the potential for litigation due to the uncertainty of being a joint employer or not. The proposed legislation aims to clarify that two or more employers must have "actual, direct, and immediate" control over employees to be considered joint employers.
This legislation is one for employers to watch, especially those who use temporary workers or independent contractors. MRA will monitor for new developments and provide updates to members.
Source: Michael Hyatt, HR Government Affairs Director, MRA – The Management Association