On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act. The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance.
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The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.  Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.
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The Department of Labor earlier this month proposed employer-friendly amendments to its rules regarding joint employer liability under the Fair Labor Standards Act. In its Notice of Proposed Rulemaking, the DOL proposed the adoption of a four-factor test to assess joint employer status under the FLSA.  The test would consider an employer’s actual exercise of significant control over the terms and conditions of an employee’s work, rather than attenuated control or contractually reserved control that goes unexercised.


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When a franchisor provides a California franchisee with detailed instructions about how to operate the franchise business, but allows the franchisee to manage its own workforce, can the franchisor be held liable for the franchisee’s wage and hour violations?  The California Court of Appeals found the answer to be no.
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On April 16, newly confirmed member John Ring was sworn in as the fifth member and Chairman of the National Labor Relations Board, establishing a Republican-controlled Board.   While all has been relatively quiet with regard to rulings from the Board,  we will likely see a rise in activity now that the NLRB (with a  newly-minted majority) is poised to roll back some of the Obama-era rulings.
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The National Labor Relations Board and McDonald’s Corp. have reached a settlement agreement in the long-running employment retaliation case brought against McDonald’s that hinges on whether McDonald’s Corp., as a franchisor, has enough control over its franchisees to be considered a “joint employer” of the franchisees’ employees.
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