As organized labor struggled for more power over the past few years, joint-employer status became a big source of contention. Organized labor advocates argue that a narrowed definition of “joint employer” lets many large companies that rely on subcontractors or other contingent workers off the hook for their treatment. Further, through franchising models common in industries like fast food, a more narrow definition of “joint employer” can relieve responsibility for employees on the part of the franchisor.
Franchisors say they worry that relaxing the definition of “joint employer” will result in extensive litigation and hold them accountable for decisions and actions over which they did not have control.
The PRO Act, currently stalled in the Senate after having passed through the House of Representatives months ago, includes a provision that would amend the National Labor Relations Act to define a joint employer as one who “codetermines or shares control over the employee’s essential terms and conditions of employment.” While the bill is unlikely to find success in the Senate, its passage would make many more businesses joint employers in the context of organizing, requiring their presence at the negotiating table in the case of a union contract. It also would render more employers responsible for violations involving concerted activity.
Like many actions taken by federal agencies, joint employment is subject to political winds in Washington, D.C. The SEIU hopes to overturn a more business-friendly Trump-era rule, which itself was issued partly in response to the Obama-era 2015 Browning-Ferris Industries decision, which expanded the application of the joint-employer label. The NLRB overturned that decision in July 2020.
Joint-employer liability is seen in other laws as well. The Fair Labor Standards Act, which pertains to minimum wage, overtime pay, recordkeeping, and youth employment standards, has its own reference to joint employers, interpretation of which has also changed with changing administrations.
Most recently, the U.S. Department of Labor rescinded a Trump-era rule which “included a description of joint employment contrary to the statutory language and Congressional intent,” according to a release from the DOL. The rescission, which was to take effect Sept. 28, 2021, has been delayed to Oct. 5, 2021, according to the agency.