Yesterday, the National Association of Manufacturers (NAM) joined the Coalition for a Democratic Workplace in filing a comment to the National Labor Relations Board (NLRB) on behalf of manufacturers across the country. The letter, which is the latest in a series of actions spanning years of advocacy by the NAM, supports a more reliable joint-employer standard (i.e., the legal test for determining if more than one entity is an individual’s “employer” and thus liable for labor law violations), with clear definitions that employers can rely on.
This became an issue in 2015 after an Obama-era NLRB decision—Browning-Ferris Industries (BFI)—which greatly expanded the definition of a joint-employer relationship, brought uncertainty to shop floors across America. As a result of the decision, employers have struggled to predict their responsibilities and liabilities. Exposing manufacturers to increased and unpredictable liabilities for the employees of subcontractors and temp agencies has led manufacturers to second guess business decisions. Imagine, a business that hires a subcontractor may face uncertainty over whether they are employers of—and therefor liable for—the subcontractor’s workers. Unsurprisingly, over the past few years, many manufacturers have altered their business structure and business relationships to distance themselves from unforeseen liability. Among other things, manufacturers have felt the need to take certain operations in-house and think twice about new business opportunities.
In order to run a business effectively it is critically important to know who is responsible for any given employee, both from an operational and a legal standpoint. A clear joint-employer standard will help bring this certainty back to the manufacturing floor. As the period for public feedback on the new proposal comes to a close, we are proud to join other industry associations in commenting in support of the NLRB’s proposed rule that clarifies the definition of a joint employer once and for all. We look forward to a final rule that will restore certainty to the workplace.