Comments on Proposed Rule to Update the Standard for Determining Joint-Employer Status

The National Employment Law Project submitted these comments on September 9, 2022 in support of the National Labor Relations Board’s proposed rulemaking that updates the standard for determining joint-employer status under the National Labor Relations Act.

Workers employed by small, labor-only subcontractors, especially those exclusively serving a single large corporation, should be presumed to be jointly employed.

Corporations that engage low-road contractors and then look the other way or actively seek to avoid bargaining with their workers gain an unfair advantage over companies that play by the rules, resulting in a race to the bottom that rewards cheaters. It’s one reason why the job quality of what were formerly middle-class jobs in America is suffering today. Without aggressive enforcement of labor rights for subcontracted workers, this second-tier workforce will find it virtually impossible to alter their second-class terms and conditions of employment at the bargaining table.

The revised standard better aligns with the common law definition of employment, better conforms with the purposes of the NLRA, and better accounts for the realities of the structures of modern employment.

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