Shark Eat Shark: DOL and NLRB Tangle on Joint Employment and Independent Contractors

The Obama-era DOL and NLRB rolled out some guidance and opinions on joint employment and independent contractors. Frankly, the agency actions were crazy broad. The result: Tons more contractors and employees on someone else’s payroll looked to the Feds like your employees. We’ve written about it for the Corporate Counsel Newsletter and Corporate Counsel Review.

But now the Feds have broken ranks. Go figure, it’s along party lines.

The DOL, now led by Trump-appointee Secretary Acosta, recently withdrew its administrative guidance that backed up the NLRB – known in lawyer geek circles as AI 2015-1 and AI 2016-1. In a three-sentence press release, the DOL parted ways with the NLRB. The DOL is out.

The NRLB is standing its ground. Two of its three current members were appointed by President Obama. Only Chairman Miscimarra got his appointment from the current administration. Until the Senate confirms appointees for the two open seats, don’t count on the NLRB to change its mind.

What about the EEOC? Back in President Obama’s days, the EEOC had tried to bolster the NLRB in court. The EEOC filed an amicus brief in the federal court challenge to the NLRB’s Browning-Ferris Industries opinion. Now that President Trump has appointed a new sheriff down at the EEOC in Acting Chair Lipnic, will the EEOC withdraw its amicus brief? Maybe so.

The broken federal ranks leave employers in roughly the same place, only a bit stronger. Expect the NLRB to keep on tearing into separate companies as joint employers until SCOTUS gets a chance to knock down Browning-Ferris or the NLRB has a political shake up. Keep on fighting the good fight in court and with other federal agencies, knowing that the DOL has softened its stance and the EEOC may soon follow.

You can also get ahead of the problem. Both our articles include practical steps to avoid getting nailed as a joint employer.