When I was a kid, it was a thrill (and, yes, it still is today) to watch all the movie trailers before the main feature. Unfortunately, some of those trailers actually spoiled the movie they were previewing (thinking of you, Kingsman: The Golden Circle). Well, the National Labor Relations Board (NLRB or the Board) has likely spoiled the ending to its looming review of the current joint employer standard that applies under the National Labor Relations Act (NLRA).

On Nov. 5, NLRB Chairperson Lauren McFerran notified several members of Congress that the Board’s two newest members (Gwynne Wilcox and David Prouty) will participate in the Board’s ongoing consideration of its joint employer standard. Why is that newsworthy? Because the Service Employees International Union (SEIU) — one of the largest labor unions in the United States — is currently suing the NLRB in federal district court to overturn the current standard, and Wilcox and Prouty were both previously employed by two prominent SEIU locals. Prouty is a prior general counsel of SEIU Local 32BJ and Wilcox formerly served as associate general counsel for SEIU’s United Healthcare Workers East chapter. Both were vocal in opposing the current joint employer standard. While NLRB members are required to have a “neutral” stance on matters, there’s little mystery as to where Wilcox and Prouty will land on this issue.

This obvious conflict of interest prompted several members of Congress to write to Chairperson McFerran about potential ethical concerns with Wilcox’s and Prouty’s participation in consideration of the NLRA joint employer standard. Chairperson McFerran, however, responded that Wilcox and Prouty “have each determined that their participation in the Board’s decision-making regarding this matter is appropriate.” Well, that’s comforting.

No need for popcorn here — the ending is spoiled, especially for employers.

Takeaways:

  • Employers should review whether workers deemed “independent contractors” are properly classified as such.
  • Employers that utilize temporary or contract workers should review their agreements with vendors, staffing agencies and other similar companies to ensure managers are not exerting direct or indirect control over the terms and conditions of those workers’ employment.