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NLRB Confirms August Publication Window for Joint Employer Rule

16 Aug


Update Applicable to:

All employers

What happened?

The National Labor Relations Board (NLRB) confirmed its intention to publish a final rule in August, updating the standard for determining joint employers under the National Labor Relations Act. The board’s proposed rule, issued in September 2022, aims to revive the standard articulated in the 2015 Browning-Ferris Industries decision.

What are the details?

Under the proposed rule, two employers may be considered joint employers if they share or codetermine essential terms and conditions of employment, including direct and indirect control. The battle to revise NLRB’s joint employer regulations has spanned almost a decade and has been marked by partisan shifts. In 2015, a Democratic-majority NLRB established the Browning-Ferris standard, considering both reserved and indirect control. However, after a shift in the board’s composition following the 2016 U.S. presidential election, efforts were made to undo Browning-Ferris.

In 2017, the Hy-Brand decision overturned Browning-Ferris but was later vacated over ethics concerns. The 2020 final rule aimed to codify the “direct and immediate control” standard, but it faced legal challenges and was proposed for replacement by the new Democratic majority in 2022.

Reverting to the Browning-Ferris Standard:

The proposed rule largely revives the 2015 Browning-Ferris Industries standard, encompassing employers with indirect control over workers. If adopted, it will replace the current 2020 NLRB rule, which narrowed the joint employer definition to substantial and direct control. A federal appeals court reversed and remanded the 2020 NLRB order, leading to the new proposal. Public comments on the proposed rule closed in December, and employers have been awaiting guidance on the joint employer issue since then.

For more information, please see the links below:


Regulatory Agenda

Proposed Rule

What do employers need to do?

Employers should closely monitor the developments related to the final rule on joint employer standards issued by the NLRB. Depending on the outcome, the definition of joint employers and the criteria for determining joint employer status may change. Employers should review their current practices and relationships with other entities to assess any potential impacts of the new rule on their labor relations and compliance obligations. It is essential to stay informed and seek legal counsel if needed to understand and adapt to any changes in the joint employer regulations.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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