Employment Tip Of The Month ' April 2023

• Jurisdiction: United States,Federal,Texas,California
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Author: Madonna Herman
• Published date: 14 April 2023

Q: How can one company be considered a joint employer of another company's employees?

A: The Opinions of several courts and related Regulations determine the answer. Different agencies and states may apply different definitions of joint employer under the applicable laws they are responsible for enforcing.

On March 3, 2023, the Fort Worth, Texas, Regional Director of the National Labor Relations Board (Board) issued a decision determining that Cognizant Technology Solutions US (Cognizant) and Google LLC (Google) were joint employers, and that the petition by Alphabet Workers Union (informally referred to as the "Google Union," Alphabet Workers Union is a trade union of workers employed at Alphabet Inc., Google's parent company) to represent certain Cognizant employees was granted. Although the petitioned-for unit determination is important for Labor Law practitioners, the Board's analysis of factors related to joint-employment status should be noted by Employment Law practitioners counseling employers nationwide.

The Board's finding was based on its joint-employer rule, which states that "an employer ... may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment." 29 C.F.R. ' 103.40. To establish this, the employer "must possess and exercise such substantial direct and immediate control over one of more essential terms of conditions of their employment." Id.

"[Essential] terms and conditions of employment" are "wages, benefits, hours of work, hiring, discharge, discipline, supervision and direction." Id. The actions must have a regular or continuous consequential effect on an essential term or condition of employment. 29 C.F.R. ' 103.40(d). The Board relied on Walter B. Cooke Inc., 262 NLRB 626 (1982): "A joint-employer relationship therefore exists where one employer, while contracting in good faith with another otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer." The standard is one of the "totality of the circumstances." 29 C.F.R. ' 103.40(d).

As noted in the opinion, Google contracted with Cognizant to support its YouTube Music Content Operations. The Board found that Google and Cognizant were joint employers and based its opinion on the following information in the record:

• Google required that Cognizant offer more...