October 11, 2019
Despite anticipated updates to the Labor Department and National Labor Relations Board joint employer rules, the Equal Employment Opportunity Commission has sued two large companies for sexual harassment, continuing its longstanding position regarding who it considers a joint employer.
For more than 20 years, the EEOC has held “a client of a temporary employment agency typically qualifies as an employer of the temporary worker during the job assignment, along with the agency … because the client usually exercises significant supervisory control over the worker.”
The EEOC’s position on joint employment is similar to the NLRB’s Obama-era Browning-Ferris decision, which considers companies to be joint employers even if they do not exert the control they have reserved over a group of employees or if they exert it indirectly.
The new NLRB rule is likely to overturn the Browning-Ferris decision and implement a more limited test requiring actual and direct control for there to be joint employment.
It is unclear if the EEOC will change its position now that it has a GOP majority and general counsel in place.
Takeaway: For the time being, employers should be aware the EEOC’s Title VII joint employer position remains unchanged from the Obama-era and will be different than DOL’s or the NLRB’s position once those two agencies publish their final rules.