Daniel M. Russo

For decades, following the Supreme Court’s decision in NLRB v. Burns International Security Services, the National Labor Relations Board generally required a buyer that purchased a unionized operation and retained a majority of the incumbent workforce to negotiate with the existing union. The buyer is a “successor,” and the Board has, in turn, established the “successor bar” doctrine requiring a successor to recognize and bargain with the incumbent union—regardless of any good-faith belief or evidence as to the incumbent union’s

The U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) last month for its proposed rule on joint employment, where multiple employers simultaneously employ the same employee. The proposed rule aims to clarify joint-employer status under the Fair Labor Standards Act (FLSA) and would align DOL’s Family and Medical Leave Act (FMLA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA) joint-employer analysis with DOL’s FLSA analysis. Joint employment has been recognized by DOL since the FLSA was enacted