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Sunday, August 30, 2015

Joint Employment: Workers' Compensation's New Frontier In The New Shared Economy

Last week the US National Labor Relations Board (NLRB) issued a decision that may have far reaching impact on how "joint employment" is interpreted in workers' compensation cases. Under the doctrine of "joint employment" an employee may be considered an employee of two employers and the ultimate responsibility maybe passed to franchisor under both, The Right to Control or The Nature of the Work, tests.

Some jurisdictions utilize, by statutory authority,  the concept of joint employment when the sub-contractor of a construction job is uninsured. The NLRBs decision has broader implications and widely expands potential liability in the new "shared economy," ie. Uber.

"Today, we restate the Board’s joint-employer standardto reaffirm the standard articulated by the Third Circuit in Browning-Ferris decision. Under this standard, the Board may find that two or more statutory employers are joint employers of the same statutory employees if they “share or codetermine those matters governing the essential terms and conditions of employment.” In determining whether a putative joint employer meets this standard, the initial inquiry is whether there is a common-law employment relationship with the employees in question. If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.
 "It is not the goal of joint-employer law to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers, while maintaining control of the workplace. Such an approach has no basis in the Act or in federal labor policy.
Browning-Ferris Industries of California  Case No. 32-RC-109684, Decided August 27, 2015 

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.