Private Duty

Maintain caution around joint employment issues after previous ruling reinstated

The National Labor Relations Board (NLRB) has changed its stance and will now, once again, find that two or more entities are joint employers of a single workforce if they share or determine together matters governing the essential terms and conditions of employment.

The recent change means that an employer could be a “joint employer” if there is evidence of indirect control, even when no evidence of direct control exists.

This reinstates the NLRB’s stance from late 2015 through December 2017.

“What it means is that franchisers and any home health or home care agency that does shared staffing of its employees are back at risk under that broad definition of what a joint employer means,” says Eileen Maguire, attorney at Indianapolis-based Gilliland, Maguire & Harper, P.C.

The standard is broad, and agencies must continue to take steps to ensure they are not exercising — or reserving the right to — control over employees of another agency in areas such as hiring, firing, discipline, compensation determination, scheduling, staffing, supervision or direction.

In August 2015, NLRB decided in Browning-Ferris Industries of California, Inc., that it would now evaluate whether an employer affects, either directly or indirectly, the means or manner of employees’ work and the conditions of employment when it decides which businesses are considered joint employers.

In December 2017, the NLRB overruled its prior decision in a 3-2 ruling.

But a client in the Browning-Ferris case is represented by NLRB board member William Emanuel’s former law firm. That represented a potential conflict of interest, and Emanuel should have recused himself from the 2017 decision, according a Feb. 9 memo from NLRB Inspector General David Berry.

The memo notes that Emanuel’s participation in the ruling “exposes a serious and flagrant problem and/or deficiency in the board’s administration of its deliberative process and the National Labor Relations Act … that should immediately be brought to the attention of Congress and addressed by the board.”

As a result of the memo, at the end of February the board vacated the change it made in December 2017. — Kirsten Dize (kdize@decisionhealth.com)

Related link: Read the Feb. 9 report at https://bit.ly/2ED9fyo.