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Benjamin Stockman, a member of the firm's Labor and Employment Group, was quoted in the August 11, 2016, issue of Bloomberg BNA's Daily Labor Report for an article about the National Labor Relations Board's subpoenas. The members of the National Labor Relations Board disagree about how the agency's regional directors can use investigative subpoenas in unfair labor practice cases where a charging party alleges that two or more entities are joint employers under federal labor law.

Mr. Stockman told Bloomberg BNA that the board made it clear in Browning-Ferris that its analysis of joint employer relationships will be very fact-intensive.

If the board uses investigative subpoenas to probe potential joint employment relationships, the agency will be looking not only at contracts between organizations, but how multiple companies implement those contracts.

"That's really where the rubber meets the road," Stockman said. "Subpoenas focused on such practical realities are likely to be more complex and potentially burdensome than simple inquiries about the formal relationships between organizations," he said. Stockman also expects NLRB regional offices will not just seek documents related to joint employer claims, but will use subpoenas to obtain testimony about possible joint employer relationships. Fielding such inquiries during the investigation of an unfair labor practice case is "obviously concerning for employers," he said.