NLRB Issues Final Rule on Joint Employer Status That Cites SWACCA’s December 2022 Comments on the Proposed Rule Three Times
The National Labor Relations Board (NLRB) issued its SWACCA-supported final rule rescinding the previous Administration’s joint employer rule and implementing a new standard for determining joint employer status under the National Labor Relations Act (NLRA). Back in December 2022, SWACCA submitted comments on the NLRB’s proposed joint employer rule that highlighted our support for rescinding the previous Administration’s joint employer standard and replacing it with today’s final rule because it will help to reduce employee misclassification in the construction industry.
As SWACCA urged in its December 2022 comments, under today’s final rule, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees
Notably, the NLRB cited SWACCA’s December 2022 comments three times in the footnotes of the final rule, including a footnote in which SWACCA’s comments and those of the United Brotherhood of Carpenters (UBC) and some UBC affiliates are cited for the proposition that a joint-employer standard should “ensure that all entities who posses the authority to control or exercise control over construction industry employees’ essential terms and conditions of employment fully comply with their obligations under the NLRA and other labor and employment statutes.”
This final rule is effective December 26, 2023.
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