In today’s column we will address the NLRB’s proposed new regulation addressing who may be characterized as a “joint employer” of another employer’s employee and review recent judicial decisions of consequence to the franchise arena.

NLRB Proposes Joint Employer Rule

On Sept. 18, 2018 the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking, proposing a regulation establishing the standard for determining when two employers could be considered “joint employers” of employees under the National Labor Relations Act. As anticipated, the proposed regulation provides that an employer may be considered a joint employer of another employer’s employees only if the two employers share or co-determine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. More specifically, the proposed regulation provides that to be deemed a joint employer, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.