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 bbc.com, 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).

Continue reading

Map Shows Joint Employment Tests Are a Mess!

IMG_8284The tests for determining whether a business is a joint employer vary, depending on which law applies. That means there are different tests under federal labor law, wage and hour law, and employee benefits law, to name a few. There are also different tests under different states’ laws.

Further complicating the analysis, there are even different tests when applying the same law — depending on where you live.

Yes, you read that right. Even though the Fair Labor Standards Act (FLSA) is a federal wage and hour law that applies across the country, federal courts in different states use different methods for determining whether a business is a joint employer under that single law.

Continue reading