BEYOND JOINT EMPLOYER STATUS: A NEW ANALYSIS FOR EMPLOYERS' UNFAIR LABOR PRACTICE LIABILITY UNDER THE NLRA

This Note argues that the National Labor Relations Board should adopt a new analysis for assessing employer liability for an unfair labor practice under Section 8(a) of the National Labor Relations Act. Under current Board law, joint employers are generally jointly and severally liable for an unfair labor practice committed by either employer. This Note's proposed analysis for unfair labor practice liability would be entirely independent from the joint employer standard, which would matter only for purposes of collective bargaining. An employer would be liable for an unfair labor practice in three situations: (I) where the employer commits an unfair labor practice against its own employees; (2) where the employer directs another employer to commit an unfair labor practice; or (3) where the employer knew or should have known that another employer with whom it has an intimate business relationship committed an unfair labor practice, and the employer facilitated or failed to resist the unlawful practice. For the third category, employers that have intimate business relationships would include a franchisor-franchisee relationship and a general contractor-subcontractor relationship. The proposed analysis is a compromise that will further the purposes of the Act by better protecting employees' rights without imposing a subsequent obligation on employers to bargain collectively.