In October of last year, the NLRB revised its rule for determining joint employer status. While on the surface you may think this does not pertain to you, further digging reveals that there is a gray area as the NLRB is focusing on “significant indirect control” over workers regardless of employee or contractor status.
In fact, it can be inferred that a contractor may argue for joint employer status in order to obtain NLRB protections. It appears that the business model that many companies are using to reduce their workforce using a final mile delivery company may no longer be viable.
Think of it this way; If you need product delivered and there is any requirement regarding deadlines, background checks, drug tests, specific hours of work, etc., the company that relays this information to the contractor can be held liable but the company (the shipper or ecommerce merchants) can be hooked in as a joint-employer regardless of whether or not they “actually” exert control. “Implied” control over the contractor will be considered by the NLRB.
While a Federal Judge in Texas has struck down this new rule, the NRLB is expected to appeal.
Article Here: joint-employer-fact-sheet-2023.pdf (nlrb.gov)
See our previous article Recent Updates from NLRB
California Trucking Association and OOIDA Lose Bid to Overturn AB5
The California Trucking Association (CTA) and the Owner-Operator Independent Drivers Association (OOIDA) challenged the 2020 AB5 rule in California that they claim unfairly targeted the trucking industry and conflicts with federal regulations.
The Judge wrote in his opinion that any challenge to AB5 should be addressed legislatively and not through the courts. Remember that ride-sharing companies successfully pulled an end-around with Proposition 22 which may have influenced the Judge’s decision. This author believes that a referendum or ballot initiative attempt from the Truckers would be a much steeper climb as voters likely do not realize the impact and necessity of Truckers the way they view ride share.
The biggest question is: Does your business model meet the criteria of the government and the states that your company operates in?
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