For more than 20 years, the EEOC has held “a client of a temporary employment agency typically qualifies as an employer of the temporary worker during the job assignment, along with the agency … because the client usually exercises significant supervisory control over the worker.”
The EEOC’s position on joint employment is similar to the NLRB’s Obama-era Browning-Ferris decision, which considers companies to be joint employers even if they do not exert the control they have reserved over a group of employees or if they exert it indirectly.
The new NLRB rule is likely to overturn the Browning-Ferris decision and implement a more limited test requiring actual and direct control for there to be joint employment.
It is unclear if the EEOC will change its position now that it has a GOP majority and general counsel in place.
Takeaway: For the time being, employers should be aware the EEOC’s Title VII joint employer position remains unchanged from the Obama-era and will be different than DOL’s or the NLRB’s position once those two agencies publish their final rules.
