Last week, the General Counsel for the National Labor Relations Board submitted an amicus brief wherein he argued that the Board should nix its current joint employer standard in favor of a “totality of the circumstances” test.  Under the current standard, the Board examines whether a putative co-employer meaningfully affects an employee’s essential terms and conditions of employment in determining whether two or more entities should be deemed joint employers.  However, the GC argued that such a test is contrary to the purposes of the Act.

“The board should abandon its existing joint employer standard because it undermines the fundamental policy of the [National Labor Relations] Act to encourage stable and meaningful collective bargaining,” the general counsel’s brief said. 

However, other amicus briefs maintain that the current standard has been in place for thirty years for a simple reason: It works.  Several amici further argue that the current standard effectuates the purposes of the Act because the standard examines whether an actual employment relationship exists before finding joint employer status. 

The case page, as well as the briefs of amici, can be found here.