October 30, 2023

Ryan Funk Comments on NLRB’s New Rule With HR Daily Advisor

In “NLRB’s Latest Rule Means Big Changes Ahead on Joint Employment Front,” HR Daily Advisor turned to labor and employment partner Ryan Funk for the potential impact of the National Labor Relations Board’s (NLRB) new rule on joint employment.

Funk called the rule “the latest swing of the NLRB pendulum.” He added, “This time, the NLRB said that lesser forms of control (contractually reserved but unexercised control and indirect control) are not just potential evidence of a joint employer relationship; they are dispositive evidence.”

“It’s easy to lose the big picture when trying to track the changes to the NLRB’s joint employer test,” Funk noted. “Employers must remember why this matters. A joint employer has a duty to bargain with the union that represents the employees, can be liable for unfair labor practices of fellow employers, and can lose legal protections against ‘secondary pressure’ like union picketing.” Funk continued, “It is an unforced error for an employer to reserve authority to control another employer’s employees when it doesn’t really need that option. So, the lowest-hanging fruit is for employers to look for reservations of authority that they can relinquish to avoid a joint employer finding.”

“Under the new rule, it will be difficult for those employers to avoid a joint employer finding, so they should consider going all in,” Funk concluded. “They will likely be determined to be joint employers, but at least they will have taken the control they need to ensure the employees are treated well and serve their functions well.”

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