AGC of America submitted comments supporting the National Labor Relations Board’s proposed rule on joint-employer status with certain clarifications January 28. The rule would reinstate a standard establishing joint-employer status under the National Labor Relations Act only when a company actually exercises substantial direct and immediate control over essential terms and conditions of employment of another company’s employees and does so in a manner that is not limited and routine. It would reverse the AGC-opposed Browning-Ferris Industries decision that was issued by the Obama Board in 2015 and recently upheld by a federal circuit court.
AGC’s comment letter supplements group comments signed onto by AGC that were filed by the Coalition for a Democratic Workplace. The group comments urge the Board to adopt the proposed rule with additional guidance to clarify the meaning of “substantial control” and relevant “essential terms and conditions of employment.” AGC’s independent comments provide further insight into the impact of the proposed rule in the construction industry. The letter explains how the reservation and exercise of some control by one company over another is inherent in the nature of construction projects and in well-established industry practices. “A contractor should be able to use and direct subcontractors without taking on joint-employer status as long as the contractor does not directly and excessively control essential terms and conditions of employment of the subcontractors’ employees,” AGC asserts in the letter.
The Board received a high volume of comments on the proposed rule during the public comment period, which is now closed. The timing of the Board’s issuance of a final rule is uncertain.