NLRB Issues Joint Employer Regulation

The NLRB issued its long-awaited and controversial Rule on joint employment. The aim of the Rule is to deem vastly increased numbers of workers as joint employees, which would permit the workers to seek to bargain with both joint employers.

Under the new Rule, NLRB will give determinative weight to the alleged joint employer’s authority to control seven key factors relating to the terms and conditions of employment: (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.”

The most controversial element of the new regulation is that indirect and unexercised authority or control can establish joint employment. Thus, if a company has contractual authority over employment terms but never used that power, that could be enough evidence under this Rule to establish the existence of a joint employer relationship.

The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date.

Update on Biden Administration Nominees

The Biden Administration has struggled to get its nominees confirmed by the Senate. However, in last few months, the logjam seems to be breaking.

Jessica Looman Confirmed as Wage & Hour Administrator

On Wednesday, October 25, 2023, the Senate by a 51-46 vote confirmed Principal Deputy Administrator, Jessica Looman, as the head of the DOL’s Wage and Hour Division. Ending an unusually long vacancy for the post after President Biden’s initial nominee, David Weil, was defeated. Looman served as the Principal Agency Administrator since January 20, 2021. As W&H Administrator, Looman will be asked to shepherd her agency’s new Independent Contractor and Overtime regulations to final promulgation.

EEOC Chair Charlotte Burrows Clears Hurdle to Confirmation

Also on Wednesday, October 25th, the Senate Health, Education, Labor and Pensions Committee moved Burrows’ nomination as Chair of the EEOC closer to confirmation, in an 11-10 party-line vote. Chair Burrows, whom President Joe Biden nominated in June for another term, is expected to win Senate approval but not by the unanimous approval she received in 2019. With Chair Burrows’ confirmation, President Biden will have appointed a majority of the 5-member Commission, enabling the EEOC to undertake its long-delayed plans including renewal of its pay data collection.

Karla Gilbride Sworn in as EEOC Counsel

Karla Gilbride was sworn in as EEOC’s General Counsel after being confirmed by the Senate on October 17 for a four-year term. Gilbride is well-versed in employment discrimination litigation with over 15 years of experience in arguing cases on behalf of workers. She previously worked as the co-director for the Access to Justice Project for the non-profit organization, Public Justice. Gilbride, who is blind, is the first person with a known disability to be appointed to this role as General Counsel to the EEOC.