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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

On December 16, 2019, in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (368 NLRB No. 139 (2019)), the National Labor Relations Board (NLRB) overturned its 2015 decision in Lincoln Lutheran of Racine (362 NLRB 1655 (2015)), restoring the Board’s 50+ year precedent established under Bethlehem Steel (136 NLRB 1500 (1962), that there is no independent statutory obligation to check off and pay employees’ union dues after the expiration of the collective bargaining agreement (CBA), even where the contract does not contain a union security provision. The decision is part of a trend of the current Board to reinstate legal standards that had stood for decades before being overturned during the Obama administration’s union-friendly Board.

In Valley Medical Center, the CBA between the employer and the union expired on December 31, 2016. The parties continued to operate under the expired contract, which contained a “check-off” provision that stated “the Check-Off Agreement and system heretofore entered into and established by the Employer and the Union for the check-off of Union dues by voluntary authorization … shall be continued in effect for the term of the Agreement.” The authorization form also stated that it was valid “during the term of the Agreement.” On February 1, 2018, almost 13 months after the expiration of the parties’ contract, and after providing 5 days’ notice and without providing the Union with an opportunity to bargain, the employer stopped deducting Union employees’ dues.Continue Reading NLRB returns to past precedent in holding that employer’s duty to deduct union dues ceases when collective bargaining agreement expires

The Employment Appeal Tribunal (EAT) has provided guidance on when the expiry of a fixed term contract will count toward the number of dismissals proposed by an employer that triggers collective redundancy consultation obligations.

The EAT held that employees who were dismissed by virtue of the expiry of their fixed term contracts were not dismissed for “redundancy” under the wider definition of that concept contained in s.195 Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) and therefore their dismissals did not count toward the number of dismissals required to trigger collective redundancy consultation obligations under s.188 TULCRA minimum 20 employee threshold. (University of Stirling v University and College Union). This decision should be treated with caution since not all dismissals on expiry of fixed term contracts will fall outside s.188 obligations. Such dismissals may ‘count’ when the dismissals are part of a wider exercise involving job losses and in other circumstances where the dismissal does not relate to the employee’s performance or conduct.Continue Reading Expiry of fixed term contracts and UK collective redundancy consultation