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NLRB Announces New Joint-employer Standard
Oct 28, 2023
On Oct. 26, 2023, the National Labor Relations Board (NLRB) announced a final rule that establishes new criteria to determine joint-employer status. Joint employment situations can happen when two or more employers share personnel hiring, supervision and management practices. When a joint employment status exists, joint employers are equally responsible for compliance with applicable laws and regulations.
Update as of Nov. 20, 2023: On Nov. 16, 2023, the National Labor Relations Board (NLRB) announced it would push the effective date of the new joint-employer rule to Feb. 26, 2024. The final rule was initially set to become effective on Dec. 26, 2023. However, the agency has delayed the effective date by two months to facilitate the resolution of legal challenges regarding the new rule. Notice of the extension will be published in the Federal Register.
Joint Employment
Whether joint employment is by design or unintentional, joint employers are equally:
- Liable for unfair labor practices committed by other joint employers;
- Required to bargain with the union that represents jointly employed workers; and
- Subject to union picketing or other economic pressure if there is a labor dispute.
To determine whether a joint-employer relationship exists, employers must evaluate the degree of control they exert over “essential terms and conditions of employment.” Essential terms and conditions of employment include wages, benefits, hours of work and employee hirings, discharges, discipline, supervision and direction.
2020 Joint-Employer Standard
The NRLB adopted the current joint-employer standard on April 27, 2020. This standard applies to labor issues related to the National Labor Relations Act.
The current standard considers the “substantial direct and immediate control” employers have over essential terms and conditions of employment for individuals who are employed by another organization. Specifically, the 2020 joint-employer standard indicates that a business is a joint employer of another employer’s employees only if the degree of joint control is of sufficient magnitude to lead to the conclusion that the joint employer meaningfully affects matters relating to the employment relationship.
In addition, under the 2020 rule, other evidence may suggest (but not prove) the existence of joint-employer status, particularly when the evidence points to indirect control or the right to exert control through contract or agreement (especially when control is never exercised).
Overview of the 2023 Rule
The new rule rescinds the 2020 joint-employer standard and:
- Clarifies the definition of “essential terms and conditions of employment,”
- Identifies the types of control that are necessary to establish joint-employer status and the types that are irrelevant to the joint-employer inquiry; and
- Describes the bargaining obligations of joint employers.
Employers should pay particular attention to the fact that the 2023 rule was drafted to be more inclusive than the 2020 rule. This means it will become easier for employers to be classified as joint employers. The 2023 rule created this more inclusive standard for determining joint-employer status by removing the requirement that joint employers must “possess and exercise … substantial direct and immediate control” over essential terms and conditions of employment.
In addition, the new standard more faithfully grounds the joint-employer rule in established common-law agency principles. Specifically, the rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, regardless of whether such control is exercised.
Finally, the NLRB has also stated that “the new rule also provides extensive guidance to parties regarding their rights and responsibilities in situations where joint-employer status has been established.”
Terms and Conditions of Employment
The final rule limits terms and conditions of employment to:
- Wages, benefits and other compensation;
- Hours of work and scheduling;
- The assignment of duties to be performed;
- The supervision of the performance of duties;
- Work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline;
- The tenure of employment, including hiring and discharge; and
- Working conditions related to the safety and health of employees.
Impact on Employers
Employers, particularly contractors and subcontractors, should become familiar with the new rule and determine whether a more inclusive joint-employer standard would reclassify them as joint employers in their operations by the rule’s effective date. Employers affected by the new standard should also take precautionary steps to ensure other joint employers comply with regulations regarding labor and employment laws for joint employees.
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With Election Day fast approaching, now is the perfect time for employers to ensure they’re fully informed about their responsibilities regarding voting leave laws and mandatory notices. Elections are a cornerstone of democracy, and it’s important to make sure your employees have the opportunity to exercise their right to vote without unnecessary hurdles. Many states have laws in place requiring employers to provide time off, sometimes paid, for employees to cast their ballots. As an employer, staying compliant and encouraging your workforce to vote helps foster a supportive and engaged environment. Additionally, it's crucial to understand any obligations you may have to notify employees of their rights around voting leave. Especially with the rise of remote work, ensuring all employees are aware of these rights—whether they are working on-site or remotely—demonstrates a commitment to both legal compliance and the well-being of your team. Let’s take a closer look at what you need to know as we approach the November 5 election. Voting Leave Most states require that employers provide at least a few hours off to vote, and sometimes those hours need to be paid. Often these laws require very little advance notice from employees about their need for leave, so employers should be prepared to grant last-minute requests to leave work to vote. If you’re in a state with early voting, you may want to encourage employees to take advantage of that option—by offering the same time-off benefit—to reduce the number of absences on Election Day. The availability of early voting and absentee ballots, however, doesn’t change an employee’s right to vote on Election Day if that’s their preference. Required Notices California, DC, and New York also require that employers post a notice about employees’ voting rights in a conspicuous location in the workplace. Employees who work from home or don’t report to the workplace regularly should be provided with these notices electronically. New York New York requires the notice to be posted at least 10 working days before the November 5 election (this would be October 22 for a Monday through Friday workplace). New York’s notice is available here . By understanding and adhering to your state’s voting leave laws and notice requirements, you not only stay compliant but also contribute to a positive, supportive workplace culture. Make sure your employees know their rights, and encourage them to get out and vote. A little preparation now will ensure a smooth Election Day for your team and your business.
As we step into the 2024-25 school year, businesses face new challenges and opportunities in supporting their employees. The intersection of work and home life is particularly pronounced during the school year, as employees with school-aged children navigate the demands of their professional roles alongside the needs of their families. Here are some practical strategies your organization can adopt to support your workforce during this critical time. 1. Flexible Work Arrangements The modern workplace is increasingly recognizing the need for flexibility. Offering flexible work hours or remote work options can significantly ease the burden on parents who need to manage school drop-offs, pick-ups, and attend school-related events. This flexibility can help reduce stress and increase productivity, as employees feel empowered to manage their time more effectively. 2. Back-to-School Resources Providing resources to help parents prepare for the school year can be a thoughtful gesture that shows you care about their personal lives. Consider offering workshops on time management, providing lists of educational resources, or even organizing a back-to-school supply drive. These efforts can make a significant difference in helping employees feel supported both at work and at home. 3. Mental Health Support The start of a new school year can be stressful for both parents and children. Offering access to mental health resources, such as counseling services or stress management workshops, can help employees cope with the anxiety and pressure that often accompany the school year. A focus on mental well-being not only supports individual employees but also fosters a more resilient and productive workforce. 4. Paid Time Off for School Activities Encouraging employees to take time off for important school activities, such as parent-teacher conferences or school performances, demonstrates a commitment to work-life balance. Some companies are now offering paid time off specifically for school-related activities, which can alleviate the guilt or stress employees might feel about missing work for family obligations. 5. Childcare Assistance Childcare remains a significant concern for working parents. Offering childcare assistance, whether through subsidies, on-site childcare facilities, or partnerships with local childcare providers, can greatly reduce the stress of finding reliable care. Even providing information about after-school programs or local childcare options can be a valuable resource for your employees. 6. Open Communication Channels Encourage managers to maintain open communication with their teams about the challenges they may face during the school year. Creating an environment where employees feel comfortable discussing their needs allows for better understanding and collaboration. Managers can then work with employees to find solutions that benefit both the individual and the organization. 7. Employee Assistance Programs (EAPs) Promoting the use of Employee Assistance Programs can provide additional support for employees balancing work and family life. EAPs often offer resources such as counseling, financial advice, and parenting support, which can be particularly beneficial during the school year. Remind your workforce of these available resources, and consider expanding them to meet the specific needs of parents. 8. Inclusive Planning and Policies Review your company’s policies and planning procedures to ensure they are inclusive of parents' needs during the school year. For example, avoid scheduling important meetings early in the morning or late in the afternoon when parents may be handling school-related duties. Involving employees in the creation of these policies can lead to more effective and widely accepted solutions. 9. Recognition and Appreciation Acknowledge the efforts of working parents by recognizing the additional challenges they face during the school year. Simple gestures like sending a note of appreciation or offering small rewards can go a long way in making employees feel valued. Recognition can boost morale and reinforce the company’s commitment to supporting its employees in all aspects of their lives. Supporting employees during the 2024-25 school year is not just about offering benefits; it's about creating a culture of understanding and flexibility that acknowledges the realities of modern family life. By implementing these strategies, your organization can help employees navigate the school year with greater ease and confidence, leading to a more engaged and productive workforce.
According to a Glassdoor report , in the year after the launch of ChatGPT, usage of that tool or those like it by professionals in the workplace more than doubled. Are you using an AI tool to help you with your work tasks? Have you considered doing so? If so, read on. There are advantages to be had and risks to note. The Basics of AI Artificial intelligence (better known as AI) is an umbrella term for a machine’s ability to make predictions, recommendations, decisions, and perform other tasks that would normally require human intelligence. Generative AI models, for instance, can create text, image, audio, and video in response to user prompts. ChatGPT is a kind of generative AI tool called a large language model. It functions similarly to the text predictor on your text messaging app—the feature that predicts and suggests what your next word will be—but at a much greater scale and with much more sophistication. It’s important to note that AI is not actually intelligent. It isn’t cognitive or aware. If you asked ChatGPT to give you a compliment, the AI model would say something nice about you, but it wouldn’t mean it. It isn’t capable of feelings, perceptions, or opinions. Given this limitation, AI should not be used as a substitute for human judgment. The Legal Landscape All the laws that govern employment still apply when you use AI to help make decisions or take action. Hiring and promotional decisions based on AI must still be free of discrimination. AI used in conjunction with providing and administering employee benefits must comply with the Employee Retirement Income and Security Act (ERISA) for covered employers. Using AI for data analysis must still comply with the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH Act), and other laws. AI does not absolve you of your compliance obligations. As more and more AI solutions enter the market and AI becomes further integrated into the workplace, we can expect more legislative and regulatory activity. Best Practices If you decide to leverage AI for HR and compliance purposes, we recommend the following practices: Be diligent when considering and testing AI tools—no AI tool will be perfect, but some may be more reliable than others. Consult with an attorney when vetting AI vendors and reviewing contracts. Maintain the highest level of privacy practices and standards with all information exchanged with an AI tool. Implement and enforce an AI policy or set of guidelines so employees understand how they should and shouldn’t use AI at work. Rely on human expertise to evaluate what AI creates for you. As when using any knowledge-supporting tool (e.g., a search engine), assume it can and will make mistakes. Set aside time to fact check information and materials created by an AI tool and monitor AI use for discriminatory outcomes and other unlawful practices. Make sure any AI product your organization uses aligns with and contributes to your business needs. Keep your actual pain points in mind when thinking about ways to leverage AI tools. Survey employees about aspects of their work they dislike the most and areas of their work they think may benefit from an AI solution. Develop an AI strategy that explains what you’re using AI to accomplish and how you’ll measure success. Periodically evaluate your uses of AI against those goals and metrics. For example, if a goal for using AI is to save time, does using it in fact save time? Be transparent with employees regarding your point of view and intentions related to AI. Not everyone is excited about AI and what it means for their jobs. People have very strong feelings about it, positive and negative. As you develop and implement AI practices, monitor morale, solicit employee feedback, and show your appreciation for it. You’ll likely get more buy-in from employees if they have a say in how AI changes their work. Encourage employees to share how they’re using AI and what’s working and not working. Ensure that everyone feels safe raising concerns, asking for help, or admitting that AI isn’t working as the company may have hoped. Plan for continued education and constant monitoring. AI technology is advancing rapidly. Employees will need regular training as models develop and new laws pass. Continuously monitor federal and state law. Practices to Avoid Some practices may spell trouble for your organization. We recommend avoiding the following: Assuming an AI model or its output complies with federal and state laws. When asked to draft a termination letter, for example, an AI tool may produce a letter that cites reasons for the termination that it pulls out of thin air—and those reasons may even be unlawful. Don’t hand over AI generated resources or publish AI produced copy without thoroughly vetting it. Assuming AI’s sources are reliable or real. Just because AI tells you a law, regulation, or court case exists or says a certain thing doesn’t mean it does. Allowing yourself to be persuaded by AI’s confident tone. AI can sound authoritative when what it’s telling you is wrong or completely made up. Relying on AI to make employment-related decisions. AI does not provide you with a “get out of liability free” card. Using AI technology to analyze employee data containing protected health or personally identifiable information. Creating legal or legally required documents with generative AI. Uploading anything into an AI model that you wouldn’t want shared publicly. Replacing human expertise with AI content. In conclusion, while AI tools can offer significant advantages in streamlining workplace tasks and decision-making, it's crucial to navigate their use with caution. Adhering to legal standards, maintaining privacy, and integrating human oversight are essential to harnessing the benefits of AI responsibly. By approaching AI thoughtfully, organizations can leverage its capabilities while mitigating potential risks and ensuring compliance with relevant regulations.
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From the Blog.
With Election Day fast approaching, now is the perfect time for employers to ensure they’re fully informed about their responsibilities regarding voting leave laws and mandatory notices. Elections are a cornerstone of democracy, and it’s important to make sure your employees have the opportunity to exercise their right to vote without unnecessary hurdles. Many states have laws in place requiring employers to provide time off, sometimes paid, for employees to cast their ballots. As an employer, staying compliant and encouraging your workforce to vote helps foster a supportive and engaged environment. Additionally, it's crucial to understand any obligations you may have to notify employees of their rights around voting leave. Especially with the rise of remote work, ensuring all employees are aware of these rights—whether they are working on-site or remotely—demonstrates a commitment to both legal compliance and the well-being of your team. Let’s take a closer look at what you need to know as we approach the November 5 election. Voting Leave Most states require that employers provide at least a few hours off to vote, and sometimes those hours need to be paid. Often these laws require very little advance notice from employees about their need for leave, so employers should be prepared to grant last-minute requests to leave work to vote. If you’re in a state with early voting, you may want to encourage employees to take advantage of that option—by offering the same time-off benefit—to reduce the number of absences on Election Day. The availability of early voting and absentee ballots, however, doesn’t change an employee’s right to vote on Election Day if that’s their preference. Required Notices California, DC, and New York also require that employers post a notice about employees’ voting rights in a conspicuous location in the workplace. Employees who work from home or don’t report to the workplace regularly should be provided with these notices electronically. New York New York requires the notice to be posted at least 10 working days before the November 5 election (this would be October 22 for a Monday through Friday workplace). New York’s notice is available here . By understanding and adhering to your state’s voting leave laws and notice requirements, you not only stay compliant but also contribute to a positive, supportive workplace culture. Make sure your employees know their rights, and encourage them to get out and vote. A little preparation now will ensure a smooth Election Day for your team and your business.
As we step into the 2024-25 school year, businesses face new challenges and opportunities in supporting their employees. The intersection of work and home life is particularly pronounced during the school year, as employees with school-aged children navigate the demands of their professional roles alongside the needs of their families. Here are some practical strategies your organization can adopt to support your workforce during this critical time. 1. Flexible Work Arrangements The modern workplace is increasingly recognizing the need for flexibility. Offering flexible work hours or remote work options can significantly ease the burden on parents who need to manage school drop-offs, pick-ups, and attend school-related events. This flexibility can help reduce stress and increase productivity, as employees feel empowered to manage their time more effectively. 2. Back-to-School Resources Providing resources to help parents prepare for the school year can be a thoughtful gesture that shows you care about their personal lives. Consider offering workshops on time management, providing lists of educational resources, or even organizing a back-to-school supply drive. These efforts can make a significant difference in helping employees feel supported both at work and at home. 3. Mental Health Support The start of a new school year can be stressful for both parents and children. Offering access to mental health resources, such as counseling services or stress management workshops, can help employees cope with the anxiety and pressure that often accompany the school year. A focus on mental well-being not only supports individual employees but also fosters a more resilient and productive workforce. 4. Paid Time Off for School Activities Encouraging employees to take time off for important school activities, such as parent-teacher conferences or school performances, demonstrates a commitment to work-life balance. Some companies are now offering paid time off specifically for school-related activities, which can alleviate the guilt or stress employees might feel about missing work for family obligations. 5. Childcare Assistance Childcare remains a significant concern for working parents. Offering childcare assistance, whether through subsidies, on-site childcare facilities, or partnerships with local childcare providers, can greatly reduce the stress of finding reliable care. Even providing information about after-school programs or local childcare options can be a valuable resource for your employees. 6. Open Communication Channels Encourage managers to maintain open communication with their teams about the challenges they may face during the school year. Creating an environment where employees feel comfortable discussing their needs allows for better understanding and collaboration. Managers can then work with employees to find solutions that benefit both the individual and the organization. 7. Employee Assistance Programs (EAPs) Promoting the use of Employee Assistance Programs can provide additional support for employees balancing work and family life. EAPs often offer resources such as counseling, financial advice, and parenting support, which can be particularly beneficial during the school year. Remind your workforce of these available resources, and consider expanding them to meet the specific needs of parents. 8. Inclusive Planning and Policies Review your company’s policies and planning procedures to ensure they are inclusive of parents' needs during the school year. For example, avoid scheduling important meetings early in the morning or late in the afternoon when parents may be handling school-related duties. Involving employees in the creation of these policies can lead to more effective and widely accepted solutions. 9. Recognition and Appreciation Acknowledge the efforts of working parents by recognizing the additional challenges they face during the school year. Simple gestures like sending a note of appreciation or offering small rewards can go a long way in making employees feel valued. Recognition can boost morale and reinforce the company’s commitment to supporting its employees in all aspects of their lives. Supporting employees during the 2024-25 school year is not just about offering benefits; it's about creating a culture of understanding and flexibility that acknowledges the realities of modern family life. By implementing these strategies, your organization can help employees navigate the school year with greater ease and confidence, leading to a more engaged and productive workforce.
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