HR Policy Amicus Brief Highlights Impact of NLRB's New "Joint Employer" Standard on CSR Policies

June 17, 2016

This week, HR Policy joined member company Microsoft Corporation in urging the D.C. Circuit to overturn the NLRB's new "joint employer" rule, citing its impact on corporate social responsibility policies and other beneficial actions and policies by companies that are directed at other companies with which they do business.  In Microsoft's case, the company had announced last March that it would do business with large suppliers only if they provided certain employees with at least 15 days of paid leave annually.  In response, a union representing employees of one of Microsoft's suppliers relied on the Board's decision in Browning-Ferris Industries (BFI) to demand that Microsoft engage in collective bargaining with the union, arguing that Microsoft was now a "joint employer" subject to the NLRA's collective bargaining requirements.  This incident illustrates a fundamental flaw in efforts by the NLRB and the Labor Department to expand companies' liabilities under employment laws through broader definitions of "employer" and "joint employer."  The attack often has the perverse effect of deterring companies from taking actions that may otherwise be beneficial to their employees and those of other employers with which they do business.  HR Policy takes no position on the Microsoft standard—or any others established by our members—but we believe that our member companies should have the freedom to establish such standards for their contractors, franchisees or others—be it pay, benefits, training, drug testing, background checks, etc.—without having to be drawn into an employment relationship on that basis alone.