PARTIES; DEFINITIONS; WHO IS AN EMPLOYER? – Joint, Single or Dual Employers
Single Topic for Decision 2272M
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201.04000 – Joint, Single or Dual Employers
Where public agency, in defending an unfair practice charge alleging a refusal to bargain, contends that it was no longer a “joint employer” of physicians at privately owned satellite medical clinics, as had been determined by the Board in a prior decision arising out of a charge alleging a refusal to process the certification petition, joint employment issue can be raised anew; whether the public agency is a joint employer of the physician employees such that the employees may be deemed “employed by” the public agency is a jurisdictional question; if the public agency is no longer a joint employer, PERB has no authority to exercise its jurisdiction; the question is whether the public agency retains the right to control both what shall be done and how it shall be done, as the essential characteristic of an employment relationship is the right to control and direct the activities of the persons rendering service, or the manner and method in which the work is to be performed; the joint employment control test requires consideration of much more than contracts and the Board is not bound solely by contract language in determining the level of control exercised by the public agency over the employee; relevant areas of inquiry include, but are not limited to, hiring practices, employment agreements, salaries and specialty pay, time base, discipline, restrictions regarding patient care, operational policies such as fees and dress code, supervision, training and personnel policies; the public agency’s bargaining obligation is limited to only those negotiable matters over which the public agency exercises control.