On June 7, Labor Secretary Alexander Acosta withdrew the U.S. Department of Labor’s previous guidance which expanded the definition of a joint employment and blurred the lines for independent contractors. The expanded joint employer definition has caused shopping center owners, service providers, and tenants to lose their ability to operate as independent entities and jeopardizes current and future contractual relationships.
The guidance was similar to the Browning Ferris Industries (BFI) decision by the National Labor Relations Board (NLRB) in August 2015, the legality of which is currently being challenged in United States Appeals Court. ICSC has expressed concern to the Department of Labor, the National Labor Relations Board, Congress and the courts over the expanded definition of a joint employer and we welcome this action from Secretary Acosta. This withdrawal marks a positive first step in restoring established labor policy that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers. ICSC is urging Congress to build on this progress by passing legislation that permanently clarifies the joint employer standard.