On February 26, 2020, the National Labor Relations Board (NLRB) issued its final rule governing joint-employer status under the National Labor Relations Act (NLRA) in the federal register. The final rule will undo a more relaxed Obama-era joint-employer test by reinstating the joint-employer standard that the Board followed for several decades prior to its 2015 decision in Browning-Ferris Industries of California, Inc. According to the Board, its ruling provides “greater precision, clarity, and detail that rulemaking allows,” as to what constitutes a joint employer.

The Browning-Ferris decision held that a company could be deemed a joint employer if “its control over the essential terms and conditions of another business’s employees was merely indirect, limited and routine, or contractually reserved but never exercised.” However, with its final rule, the Board will reinstate a pre-Browning-Ferris test which holds that a business is only a joint employer if it “has substantial direct and immediate control” of one or more essential terms or condition of a worker’s job such that the business “meaningfully affects matters” pertaining to the employment relationship. In its ruling, the NLRB defined those “essential terms and conditions of employment” as “wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” It also defined “substantial” direct control as actions that have “a regular or continuous consequential effect” on one of the eight core aspects of a worker’s job that the Board listed, while pointing out that any direct control that is “sporadic, isolated, or de minimus” is insufficient to warrant a finding of joint employment.Continue Reading The NLRB offers “clarity” on its joint-employer test by issuing its final rule

At a time when public employers across Pennsylvania are seeking to reduce or at least contain the skyrocketing costs of post-retirement health care benefits, the Commonwealth Court has virtually handcuffed municipalities from achieving any genuine relief for decades. The Commonwealth Court ruled in FOP, Flood City Lodge No. 86 v. City of Johnstown, No. 1873 C.D. 2010 (February 22, 2012), that the elimination of post-retirement health benefits for active police officers and firefighters by an Act 111 interest arbitration panel constitute an unlawful diminishment of contractually guaranteed benefits under the Home Rule Charter Law. This decision will likely have broad implications, as it signals how the Commonwealth Court will interpret a similar provision in the Pennsylvania Constitution that applies to all municipalities.
Continue Reading Pennsylvania Commonwealth Court Prohibits Act 111 Arbitration Panels from Reducing Post-Retirement Health Care Benefits for Active Employees

Effective January 1, 2012, private California employers of non-exempt employees not subject to certain collective bargaining agreements will face new reporting and recordkeeping requirements and penalties for violations of California’s aggressively-titled “Wage Theft Prevention Act” signed into law in October 2011. Similar to New York’s law of the same name enacted last year, the Act

In perhaps no U.S. presidential election in recent memory has the outcome been more important to a change in our basic labor law, the National Labor Relations Act (“NLRA” or “Act”). Predictions are that if Sen. Obama is elected President and the Democrats take control of Congress, the crown jewel in labor’s legislative agenda, the Employee Free Choice Act, which passed the House last year but fell short in the Senate,1 could become the law of the land.2

The Employee Free Choice Act (“EFCA”), as passed by the U.S. House of Representatives, has three major features that make sweeping changes in the current provisions of the NLRA. First, the Act will permit unions to obtain certification through a mandatory card check conducted by Regional Offices of the National Labor Relations Board (“NLRB” or “Board”). Second, EFCA will impose first contracts through interest arbitration where the parties are unable to agree on the terms of such agreements. Third, EFCA will amend certain provisions of the Act to permit NLRB Regional Directors, acting at their own discretion, to seek injunctive relief against employers for alleged violations arising out of union organizing campaigns. The Board will be required to assess both back pay and double liquidated damages on employers who discharge employees during an organizing campaign. In addition, the Board will have authority to assess a civil penalty of up to $20,000 per violation of Section 8(a)(1) or (3) of the Act that substantially interferes with the union organizational process during the period of organizing and, after certification or recognition of a union, until a first contract is entered into. Each of these changes and its significance is examined below.Continue Reading The Employee Free Choice Act: The Crown Jewel of Organized Labor’s Legislative Agenda