For starters, a little context is in order. During the Obama Administration, both the United States Department of Labor (“DOL”) and the National Labor Relations Board (“NLRB”) reinforced the legal standard for proving that two supposedly separate companies are jointly responsible for workplace matters. This legal concept, often referred to as the joint employer doctrine, has been a powerful way to secure more complete justice for employees who have experienced wage theft, retaliation, harassment, discrimination, or other violations of employment law or civil rights statutes. The United States Equal Employment Opportunity Commission has followed a similar approach, but the DOL and NLRB were especially active in enforcing labor & employment law through the joint employer doctrine during the Obama Administration.
In the past two years, however, the Trump Administration has moved swiftly and aggressively to counteract the advances in workplace fairness achieved in recent times. Specifically, the Trump Administration is basically attempting to rewrite the law for enforcing workplace rights in a number of respects – including as to the joint employer doctrine. To that end, the DOL recently proposed a new rule to make it much more difficult to prove that two companies are a joint employer and, therefore, jointly responsible for workplace violations. In particular, the DOL now seeks to impose a four-factor test that does not fairly or fully account for the practical realities of the Twenty First Century economy: (1) whether each company actually exercises the power to hire or fire employees; (2) whether each company actually supervises and controls work schedules or other material employment conditions; (3) whether each company actually determines the rates and methods of payment to employees; and (4) whether each company actually maintains employment records. The NLRB has similarly proposed a new and more company-friendly joint employer rule.
The Executive Director of the Labor and Worklife Program at Harvard Law School, Sharon Block, has warned that the radical changes pursued by the Trump Administration would – if allowed – provide an “obvious road map for employers to evade liability.” Consequently, it is essential for unions, worker centers, plaintiff counsel, and other employee advocates to work together in opposing the proposed new rules and similar efforts by the Trump Administration to obstruct enforcement of workplace rights.