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Law360: NLRB joint employer test may seep into bias cases (excerpt)

By Vin Gurrieri, Law 360

The NLRB on October 26 finalized a highly anticipated rule that revised its legal test for determining whether linked entities can be deemed joint employers under the National Labor Relations Act in a way that would make it easier for workers to force those companies to the bargaining table or to hold them jointly accountable for NLRA violations.

Even though the legal standard used by the NLRB and the tests used by the U.S. Equal Employment Opportunity Commission and courts in the discrimination law context don't match, the labor board's final rule included an extensive discussion of legal jurisprudence for joint employment in the context of Title VII of the Civil Rights Act and other anti-discrimination laws. For that reason, the NLRB's interpretation of joint employment could extend beyond the bounds of labor law, various management-side attorneys told Law360.

Jerry Hunter of Bryan Cave Leighton Paisner LLP, a former general counsel of the National Labor Relations Board and onetime EEOC senior trial attorney, said he has "no doubt" that plaintiffs involved in Title VII litigation or matters before the EEOC will cite to the NLRB's interpretations of joint employment.

"I don't think there's any doubt that plaintiffs and/or unions will try to convince the court that they should rely on the [NLRB's rule]," Hunter said. "Not to say that the National Labor Relations Act controls Title VII, but I think they will try to argue that the NLRB's interpretation for joint employment should also be applied on Title VII."

"Now, obviously, there is a counterargument that the board's jurisprudence is not binding on the EEOC and is also not binding on any federal court as a court interprets Title VII," he cautioned.

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