By TMA HR Partner SESCO Management Consultants
· The National Labor Relations Board (“Board” or “NLRB”) has issued a new joint employer rule. The Board changed its joint employer analysis by case law in 2015, and again in 2020. This time the change comes via issuing a new regulation.
· The Board has long held that when two or more employers share or co-determine essential terms and conditions of employment, they are both considered employers of the employees in question. They are “joint employers” of those employees.
· The new rule spells out what the Board considered “essential” terms and conditions of employment. They are: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.
· The new rule emphasizes that an employer’s right to control one or more essential terms will be considered, even if it is not exercised. This is true whether the right is reserved or exercised directly or indirectly (via a third party). For example, where a contract states that the customer employer has the right to request that specific persons not be assigned to the customer employer, the Board would view that as a reserved right to control an assignment at the least, if not tenure of employment as a practical matter.
· The new rule is set to take effect on December 26, 2023.
· In the meantime, employers who provide or who utilize employees of another organization will want to review the terms of their agreements. To what extent is control reserved regarding one or more of the identified essential terms of employment? Is such reservation necessary under the circumstances? Are there ways in which the provider employer can be given more independence?
ALL EMPLOYERS MUST USE REVISED FORM I-9, STARTING NOVEMBER 1
Starting November 1, all employers must use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23.
EEOC ANNOUNCES OCTOBER 31 OPENING AND DECEMBER 5 DEADLINE FOR 2022 EEO-1 REPORTS
· The Equal Employment Opportunity Commission (EEOC) has announced that October 31, 2023, is the date the portal for submitting 2022 EEO-1 Reports will open.
· The EEOC also set a December 5, 2023, deadline for completion of 2022 EEO-1 Reports.
· The EEO-1 Report is a federally mandated survey that collects workforce data categorized by race, ethnicity, sex, and job category.
· Covered employers must usually submit EEO-1 Reports by March 31 each year. For 2022 EEO-1 Reports, however, the EEOC had previously extended the portal’s opening date twice—first until mid-July and then later until mid-fall— before making the most recent announcement.
· Federal regulations require that all employers in the private sector with 100 or more employees, and federal contractors and subcontractors with 50 or more employees and a federal contract or subcontract amounting to $50,000 or more, file the EEO-1 Report annually.
· Although the EEOC sends notification letters to employers it knows to be subject to EEO-1 requirements, all covered employers are responsible for obtaining and submitting the necessary information prior to the appropriate deadline. Employers filing EEO-1 Reports for the first time must register to receive login information, a password, and further instructions for filing from the EEOC.
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