Joint Employment Quandary: Navigating NLRB's Expansive New Rule; Increased Risks for Union and Non-Union Employers
Essential Terms and Conditions of Employment; No Direct Control Required; Interaction With Other Agency Standards
Recording of a 90-minute CLE video webinar with Q&A
This CLE webinar will guide practitioners through the NLRB's new and expansive final rule setting the standard for joint employment including the increased risks and obligations this rule imposes on union and non-union employers. The panel will address how counsel may assist their clients to mitigate the risk of being found to be a joint employer, including contractual considerations with third parties and navigating various federal agency standards.
Outline
- History of NLRB's joint employer standard
- Browning-Ferris Indus. of Ca. (BFI) v. NLRB (D.C. Cir. 2018)
- Rescinding the 2020 rule
- September 2022 NPRM
- The NLRB's final rule
- Covered employers
- Modifications to the 2022 proposed rule and effect on employers
- Essential terms and conditions of employment
- Types of control necessary to establish joint employer status
- Reserved control
- Indirect control, including through an intermediary
- Irrelevant control
- Bargaining analysis and scope of bargaining obligations
- Outstanding issues and considerations yet to be addressed by the NLRB
- Common law factors
- Business-to-business relationships
- Quantum of proof and evidentiary standards
- Lack of exemptions
- Joint employment standards under other federal agencies
- DOL
- EEOC
- Best practices for compliance
- Contractual considerations
- Disclaiming reserved authority to control the terms and conditions of another employer's employees
- Defining NLRA rights and obligations
- Indemnification provisions
- Other considerations
- Navigating joint employment standards under various federal statutes
- Contractual considerations
Benefits
The panel will review these and other important considerations:
- How does the final rule modify the 2022 proposed rule?
- How does the final rule define essential terms and conditions of employment?
- What types of control over another entity's employee(s) are necessary to establish joint employer status?
- How may counsel help their clients mitigate the risk of joint employment under the NLRA when negotiating and drafting contracts with third parties?
- What are the potential consequences of being found to be a joint employer under the NLRA?
- How does the NLRB's joint employment standard differ from other federal agencies' standards determining joint employment? What impact may this have on employers?
Faculty
Matthew A. Fontana
Partner
Faegre Drinker Biddle & Reath
Mr. Fontana handles a variety of traditional labor matters for both public and private sector clients under the... | Read More
Mr. Fontana handles a variety of traditional labor matters for both public and private sector clients under the National Labor Relations Act, Labor Management Relations Act, and Pennsylvania’s Public Employee Relations Act. He counsels clients on day-to-day labor/management issues (including union organizing and strike issues), handles grievance/arbitration issues and leads collective bargaining negotiations. Mr. Fontana also has Railroad Labor Act experience representing both railroad and airline clients. He also handles a broad range of employment matters under local, state, and federal laws, including: Title VII; Americans with Disabilities Act; Age Discrimination in Employment Act; Family and Medical Leave Act; Fair Labor Standards Act; Pennsylvania Human Relations Act; New Jersey Law Against Discrimination; Conscientious Employee Protection Act; whistleblower laws and OSHA investigations; and restrictive covenant, noncompetition and trade secret issues. Mr. Fontana has also defended wage and hour class actions involving state and federal law.
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Ronald Holland
Shareholder
Greenberg Traurig
Mr. Holland litigates on behalf of employers in state and federal courts, focusing on wage and hour class actions,... | Read More
Mr. Holland litigates on behalf of employers in state and federal courts, focusing on wage and hour class actions, whistleblower suits, breach of contract, accusations of wrongful termination, harassment, discrimination, and other complex labor and employment matters. He defends employers nationwide in proceedings before state and federal governmental agencies, including the Department of Fair Employment and Housing, the Equal Opportunity Employment Commission, the National Labor Relations Board, the California Labor Commissioner, and the U.S. Department of Labor. Mr. Holland’s clients span a range of industries, including retail, entertainment, automotive, aviation, paper production, manufacturing, printing, healthcare, warehousing, and the gig economy. His traditional labor practice focuses on labor arbitrations, unfair labor practice and representation hearings, collective bargaining negotiations, and federal court litigation. Mr. Holland serves as lead negotiator in contract negotiations and handles representation and unfair labor practice cases before the NLRB. He counsels Fortune 500 companies on labor strategy, union organizing, and responding to union-backed corporate campaigns.
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Marjorie McMahon Obod
Partner, Co-Chair Labor & Employment Group, Chair Educational Institutions Group
Dilworth Paxson
Ms. Obod dedicates her practice to providing counsel to corporate clients and nonprofit organizations in labor,... | Read More
Ms. Obod dedicates her practice to providing counsel to corporate clients and nonprofit organizations in labor, employment, education, and regulatory matters. She handles jury trials in class actions and general litigation cases, including the education and employment and benefits area; wage and hour audits and reviews and litigation; Title VII cases; U.S.C. §1981 cases; the enforcement of restrictive covenants in employment agreements in arbitration and mediation; discrimination claims; and other employers/employee disputes raised by the Department of Labor, and brought in federal and state courts in Pennsylvania, New Jersey, New York, and the District of Columbia; and regulatory and litigation proceedings in labor matters. In addition, Ms. Obod represents clients before the EEOC, the Pennsylvania Human Relations Commission, the New Jersey Division on Civil Rights, the OSHA, the NLRB and the Pennsylvania Labor Relations Board. She serves as general counsel to nonprofit organizations and has extensive experience in compliance and workplace investigations.
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