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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, January 24, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will guide practitioners through the NLRB's new and expansive final rule setting the standard for joint employment including the increased risks and obligations this rule imposes on union and non-union employers. The panel will address how counsel may assist their clients to mitigate the risk of being found to be a joint employer, including contractual considerations with third parties and navigating various federal agency standards.

Faculty

Matthew A. Fontana
Partner
Faegre Drinker Biddle & Reath LLP

Mr. Fontana handles a variety of traditional labor matters for both public and private sector clients under the National Labor Relations Act, Labor Management Relations Act, and Pennsylvania’s Public Employee Relations Act. He counsels clients on day-to-day labor/management issues (including union organizing and strike issues), handles grievance/arbitration issues and leads collective bargaining negotiations. Mr. Fontana also has Railroad Labor Act experience representing both railroad and airline clients. He also handles a broad range of employment matters under local, state, and federal laws, including: Title VII; Americans with Disabilities Act; Age Discrimination in Employment Act; Family and Medical Leave Act; Fair Labor Standards Act; Pennsylvania Human Relations Act; New Jersey Law Against Discrimination; Conscientious Employee Protection Act; whistleblower laws and OSHA investigations; and restrictive covenant, noncompetition and trade secret issues. Mr. Fontana has also defended wage and hour class actions involving state and federal law.

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Ronald Holland
Shareholder
Greenberg Traurig LLP

Mr. Holland litigates on behalf of employers in state and federal courts, focusing on wage and hour class actions, whistleblower suits, breach of contract, accusations of wrongful termination, harassment, discrimination, and other complex labor and employment matters. He defends employers nationwide in proceedings before state and federal governmental agencies, including the Department of Fair Employment and Housing, the Equal Opportunity Employment Commission, the National Labor Relations Board, the California Labor Commissioner, and the U.S. Department of Labor. Mr. Holland’s clients span a range of industries, including retail, entertainment, automotive, aviation, paper production, manufacturing, printing, healthcare, warehousing, and the gig economy. His traditional labor practice focuses on labor arbitrations, unfair labor practice and representation hearings, collective bargaining negotiations, and federal court litigation. Mr. Holland serves as lead negotiator in contract negotiations and handles representation and unfair labor practice cases before the NLRB. He counsels Fortune 500 companies on labor strategy, union organizing, and responding to union-backed corporate campaigns.

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Marjorie McMahon Obod
Partner, Co-Chair Labor & Employment Group, Chair Educational Institutions Group
Dilworth Paxson LLP

Ms. Obod dedicates her practice to providing counsel to corporate clients and nonprofit organizations in labor, employment, education, and regulatory matters. She handles jury trials in class actions and general litigation cases, including the education and employment and benefits area; wage and hour audits and reviews and litigation; Title VII cases; U.S.C. §1981 cases; the enforcement of restrictive covenants in employment agreements in arbitration and mediation; discrimination claims; and other employers/employee disputes raised by the Department of Labor, and brought in federal and state courts in Pennsylvania, New Jersey, New York, and the District of Columbia; and regulatory and litigation proceedings in labor matters. In addition, Ms. Obod represents clients before the EEOC, the Pennsylvania Human Relations Commission, the New Jersey Division on Civil Rights, the OSHA, the NLRB and the Pennsylvania Labor Relations Board. She serves as general counsel to nonprofit organizations and has extensive experience in compliance and workplace investigations.

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Description

The NLRB recently released its expansive final rule, effective Feb. 26, 2024, setting the standard for joint employment under the NLRA and impacting union and non-union employers. The final rule creates risks for organizations that use outside workers or simply benefit from their services, including businesses and their service providers or franchisors and franchisees.

Under the final rule, joint employment may be found where one entity has direct and/or indirect control (including through an intermediary) over any of the essential terms and conditions of employment of another entity's employees, even if that control is only reserved or never actually exercised. The final rule sets forth an exhaustive list of terms and conditions of employment that are considered essential for the purposes of joint employment analysis--including wages, work hours, assignment of duties, work rules governing the manner in which the work is performed, and hiring and discharge.

Joint employer status could make one entity liable for the other entity's NLRA violations, even if the first entity did not participate in the underlying events. It could also expand the joint employers' bargaining obligations. Both are very costly to employers.

In addition to understanding the NLRB's joint employment rule and its effect on their clients, counsel should be aware of how the new rule interacts with and/or differs from other federal agencies' joint employment standards (e.g., DOL, EEOC) and how their clients can best navigate the various federal standards to minimize risk.

Listen as our expert panel guides practitioners through the NLRB's new rule setting the standard for joint employment. The panel will discuss best practices for mitigating risk, including third-party contractual considerations and navigating the maze of federal joint employment standards.

Outline

  1. History of NLRB's joint employer standard
    • Browning-Ferris Indus. of Ca. (BFI) v. NLRB (D.C. Cir. 2018)
    • Rescinding the 2020 rule
    • September 2022 NPRM
  2. The NLRB's final rule
    • Covered employers
    • Modifications to the 2022 proposed rule and effect on employers
      • Essential terms and conditions of employment
      • Types of control necessary to establish joint employer status
        • Reserved control
        • Indirect control, including through an intermediary
        • Irrelevant control
      • Bargaining analysis and scope of bargaining obligations
  3. Outstanding issues and considerations yet to be addressed by the NLRB
    • Common law factors
    • Business-to-business relationships
    • Quantum of proof and evidentiary standards
    • Lack of exemptions
  4. Joint employment standards under other federal agencies
    • DOL
    • EEOC
  5. Best practices for compliance
    • Contractual considerations
      • Disclaiming reserved authority to control the terms and conditions of another employer's employees
      • Defining NLRA rights and obligations
      • Indemnification provisions
      • Other considerations
    • Navigating joint employment standards under various federal statutes

Benefits

The panel will review these and other important considerations:

  • How does the final rule modify the 2022 proposed rule?
  • How does the final rule define essential terms and conditions of employment?
  • What types of control over another entity's employee(s) are necessary to establish joint employer status?
  • How may counsel help their clients mitigate the risk of joint employment under the NLRA when negotiating and drafting contracts with third parties?
  • What are the potential consequences of being found to be a joint employer under the NLRA?
  • How does the NLRB's joint employment standard differ from other federal agencies' standards determining joint employment? What impact may this have on employers?