The National Labor Relations Board has revised the so-called “joint employer” standard significantly to expand the scope of determining “co-employment” under the National Labor Relations Act. Specifically, the NLRB decided that a company of an employee could be considered a “joint employer” if it possesses the right to control various terms and conditions of employment, regardless of whether that company actually exercises such control. Previously, employers had to actually exercise control to be considered a joint employer. This will have serious consequences with respect to unionization and employers’ oversight of their employees and contractors, particularly in the franchisor-franchisee environment. 

In addition, the Department of Labor has released “guidance” that has the effect of limiting employers’ ability to classify workers as “independent contractors” rather than employees. Both moves will have a direct affect on NATSO mem­bers as the franchisor-franchisee busi­ness model is ubiquitous throughout the truckstop and travel plaza industry and many NATSO members utilize in­dependent contractors.


Broadening the joint employer stan­dard will expose more companies to legal liability for how their subcon­tractors, staffing agencies and fran­chisees treat their employees. The ruling also makes businesses more susceptible to workforce unionization and will have serious consequences related to employers’ oversight of their employees and contractors, particularly in the franchisor-franchi­see environment.

The new joint employer standard also means that more employers can be held liable for unfair labor practices.

Businesses should give greater scrutiny to the employment practices of subcon­tractors, franchisees and staffing agen­cies. NATSO members are advised to closely scrutinize existing relationships with contract workers, such as equip­ment inspectors, delivery personnel and maintenance staff, to determine whether there is a vulnerability to findings of joint employer status.

NATSO members that are franchisees are advised to contact their franchi­sor to discuss the new joint employer standard’s implications for their ar­rangements. NATSO members that are franchisors are advised to closely audit their franchise agreements to ensure they appropriately allocate de­cision-making authority in light of the evolving nature of the NLRB’s joint employment regime.


The DOL’s guidance on independent contractors is a potentially critical development in labor law. The rules remain largely ambiguous, but the guidance delineates six factors that should be used to make independent contractor assessments:

They are:

  • Are the worker’s contributions an “integral part” of the employer’s business?
  • Is the worker’s opportunity for profit or loss based on or affected by the worker’s managerial skill?
  • How do the relative investments of the employer and the worker in the worker’s business compare?
  • Do the worker’s job duties require advanced skills?
  • What is the degree of permanency in the work relationship?
  • What is the nature and degree of control exercised and retained by the employer?

The DOL’s guidance indicates that the federal government is likely to increase its independent contractor enforce­ment efforts. It also means that plain­tiffs’ lawyers can be more aggressive in asserting claims against employers when purported independent contrac­tors suffer labor grievances. The status of a worker as an employee vs. an inde­pendent contractor can have implica­tions in a variety of areas, such as an employer’s obligations to pay overtime benefits, offer healthcare coverage un­der the Affordable Care Act and be li­able for workplace injuries.

As a best practice, NATSO members should audit their independent con­tractor relationships to ensure that they comport with the DOL’s guidance. 


NATSO prepared a full analysis of the NLRB’s effort to revise the joint employer standard and the Department of Labor’s guidance on independent contractors, including more detail on the potential affect this could have on NATSO members.

The full document is available only to NATSO members at http:// articles/view/-joint-employer-standardunionization-summary-and-compliance-guide-for-truckstops-and-travel-plazas.

via Business Feeds

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