Rules are Rules: Shetland Islands Should Stay in a Box, but NLRB Should Proceed with Change to Joint Employment Test

Shetland Islands joint employment

From, putting a u in “labor” just for you!

Some rules bring clarity, but other rules are plain wacky.

In the second category we introduce Scottish member of Parliament Tavish Scott, who is trying to pass a law requiring maps of Scotland to show the actual location of Shetland, in proportion to its distance, instead of putting it in a box like U.S. maps do for Hawaii and Alaska. The problem is that the Shetland Islands are pretty far north of the rest of Scotland, a 12-hour ferry ride across ancient-sea-monster-infested waters. According to one mapping agency,  Scottish maps would be “mostly sea” under Scott’s idea.

(Danish mapmakers, still angry about the territorial addition of Greenland, could not be reached for comment.)

A better way to use rules is to bring clarity. Scots know that the Shetland Islands are far away. That’s what the box means. Less clear, however, is the meaning of “joint employment” under U.S. labor law. As we’ve seen from several earlier posts (like here, here, and here), the new NLRB is trying to change the test for “joint employment” from the broad Browning-Ferris test (indirect opportunity to control = joint employment) to a tighter, more workable standard (requiring direct control over key terms of employment).

As we wrote here, the Board is now planning to go through the rigorous formal rulemaking process for changing the joint employment test. This process allows for public comment and takes a long time, but is intended to provide long-term certainty instead of allowing the test to ping-pong back and forth depending on the makeup of the 5-member Board.

For businesses, rulemaking is a good idea. It would finally bring some certainty to the process. It would add certainty and allow companies to plan around a firmly defined standard.

Last week, Senators Bernie Sanders, Elizabeth Warren, and Kirsten Gillibrand published a letter criticizing the proposed rulemaking process because they know it will result in the standard they don’t want. The letter is basically a publicity stunt intended to please their constituents, but that’s what politicians sometimes need to do.

Just ask Tavish Scott, who represents the Shetland Islands.

© 2018 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.