Seeking Clarity in a Game of Thrones and Joint Employment

Warning: While I won’t spoil any details related to last night’s season 8 premiere, there will be spoilers potentially up through the end of Season 7. So, if you’re not caught up, you may want to run away—I’ll make sure to “Hold the Door” for you.

With a constant shift in alliances due to necessity, strategy, or treachery, the characters that people Game of Thrones often work in joint-employer arrangements. Today’s EntertainHR explores the complexities of the arrangement both in Westeros and in the United States.

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Winter is finally here. Not literally of course, as the calendar has turned to mid-April. Rather, what I mean is that the highly anticipated last season of Game of Thrones (GoT or simply Thrones for those so inclined) finally premiered last night.

My colleague Julie Adams wrote a couple weeks ago about the anticipation surrounding Thrones’ return, as well as how GoT provides several interesting corollaries to employment law issues. However, let’s be honest, you can never have too much Game of Thrones content (at least in my opinion). And with Thrones officially back, viewers are starting to get some questions answered and are eagerly awaiting additional answers over the next several weeks.

Throughout the series, numerous questions have arisen, and audiences are hoping and speculating about how these outstanding issues will be resolved. How will Jon react to learning about his true parentage, and what will he do about it? What does the Night King want, if anything, besides death and destruction? Will we see Cleganebowl? Who will survive, and ultimately, who will sit on the Iron Throne? The list goes on.

Shifting Alliances

One of the most interesting questions throughout the series, particularly in the earlier seasons, was wondering who each character was “working” with or for. There’s a reason the show is called “Game” of Thrones. As Cersei Lannister said to Ned Stark way back in season 1, “when you play the game of thrones, you win or you die.” The show has always been about the strategic machinations (whether motivated by politics, personal vendettas, or simply the will to survive) made by the characters to best position themselves within this game. And these motivations and alliances have resulted in some of the most important plot devices and twists throughout the show’s history.

Remember Ned Stark’s surprise beheading in season 1? The gruesome scene was partly due to the traitorous acts of Petyr “Littlefinger” Baelish. But for whom was Littlefinger working, if anyone? And who can forget the infamous Red Wedding? Well, Walder Frey and Roose Bolton entered into a joint venture with the Lannisters and thus turned against the Starks. Don’t forget King Joffrey’s poisoning, which was apparently the result of a secret joint-partnership between Lady Olenna Tyrell and Littlefinger—we eventually learned that he spent his entire life strategically working behind the scenes in concert with various parties as long as it resulted in his personal accumulation of power. On and on it goes. Even an avid fan like myself sometimes can get confused when it comes to keeping track of all the changing allegiances within the show.

Joint-Employment: Often Confusing

Employers similarly are rightfully confused when it comes to keeping track of how the concept of joint employment is treated under the law. As with GoT, sometimes it is difficult to determine who is “working” with whom, when it comes to being liable as a joint employer. In fact, just in the last several years, the National Labor Relations Board (NLRB) has quite literally gone back and forth between competing standards. In September 2018, it proposed a new joint employment rule that would be more favorable to employers and require, in part, a showing that an employer possesses and actually exercises substantial direct and immediate control over essential terms and conditions of employment (rather than an indirect control test). The NLRB’s proposed rule is pending.

On April 1, the U.S. Department of Labor (DOL) also issued a Notice of Proposed Rulemaking (NPRM), proposing to update its joint employment regulations. The DOL contends that it is seeking to “clarify the standard for joint employer status” and through the NPRM is proposing a four-factor balancing test assessing whether the purported joint employer (1) hires or fires the employee; (2) supervises and controls the employee’s work schedules or conditions of employment; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment records. This move is not necessarily surprising, particularly since June 2017, when the DOL rescinded an Obama-era administrator’s interpretation that broadly defined joint employment.

For Now Proposals Do Not Bring Clarity

On the one hand, these proposals are just that, proposals. And in the case of the DOL’s NPRM, comments may be submitted until June 10, so there is still a long way to go. Furthermore, even if enacted, these new rules aren’t necessarily binding on the courts, as they may only be considered persuasive authority and there are also certain state laws that may differ. On the other hand, if enacted, these will be the established tests by the NLRB and DOL, which, of course, will administer their cases and investigations accordingly—likely to the benefit of employers that will have a bit more clarity and a more employer-friendly test.

After all, clarity, above all else, is what employers crave. When it comes to business, the only thing worse than bad news is not being able to prepare for, and if possible, minimize, that bad news. When it comes to TV shows, such as Thrones, not having complete clarity oftentimes leads to plot twists, thrills, and amazingly unexpected moments during the viewing experience. However, when it comes to the last season of our favorite TV shows, like employers, we do like to have some clarity on how all the important loose ends will be tied up. Hopefully, a final determination will be made with regard to the NLRB and DOL’s proposed rules sooner rather than later, bringing about some much needed clarity for both employers and employees.

Don’t get me wrong; I don’t need the Thrones’ showrunners to spell out everything by season’s end. But if I don’t get closure on the most important and obvious plot lines, well then, “you know nothing,” creators of GoT. You know nothing.