The policy swings of the National Labor Relations Board continued with two recent events.

On September 6, the NLRB released a Notice of Proposed Rulemaking signaling the Board’s intention to change the standard for determining whether or not joint employer status exists.

Under the proposed standard, two or more employers of the same employees are joint employers if the employers directly or indirectly possess the authority to control, or can exercise power to control, the employee’s terms and conditions of employment.

These essential terms include wages, benefits, hours, scheduling, discipline, health, safety and other elements.

The proposed standard broadens the definition in the current rule, adopted in 2020, under which joint employer status is established only when a company exercises “substantial direct and immediate control” over the essential terms and conditions of another company’s employees.

This revision to the standard has significant potential impact on employers who utilize staffing agencies, franchisees and general contractors to name just a few.

Employers who are concerned about their joint status and the potential impacts of a revised standards are urged to (1) communicate those concerns to their members of Congress and (2) consult with a qualified labor and employment attorney for guidance.

In a second decision favoring workers, the NLRB on August 29 “clarified” the standard regarding the wearing of union apparel, buttons, hats, stickers, shirts, or any other accessories or attire in the workplace.  The prior standard allowed employers to establish policies limiting the size and appearance of union apparel or accessories. The Board overruled that precedent in favor of a broader interpretation of an earlier decision by the Board.

The ‘new’ standard establishes that when an employer interferes in any way with an employee’s Section 7 (National Labor Relations Act) rights, such interference is presumed to be unlawful, and the employer has the burden of proving special circumstances exist to justify its interference.

This new standard arose from the Board’s decision in a full hearing addressing charges filed by several unions in 2019.

Unionized employers with dress codes limiting apparel or accessories, employers currently engaged in organizing attempts, and employers concerned with how this decision may affect their future vulnerability to union organizing attempts should consult with a qualified labor & employment attorney for guidance.

AIM members seeking to engage a qualified labor and employment attorney should contact their member services representative or the AIM HR Employer Hotline (800-470-6277) for a list of referrals.