NLRB Announces Final Joint Employer Rule

The National Labor Relations Board (NLRB) issued its final rule altering the standard for determining joint employer status under the National Labor Relations Act (NLRA). The rule replaces the Board’s 2020 final rule, which had addressed the standard adopted by the Obama-era Board in Browning Ferris Industries (BFI). We’re going through the rulemaking and will provide more details once processed.

The final rule appears to be very closely aligned with the Board’s notice of public rule making (NPRM) and represents an expansion to joint employer status for purposes of the Act. Notably, the final rule explicitly states that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) or exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer. This means that either indirect or reserved control may stand alone as basis for the finding of a joint employer relationship, and the existence of either – without regard to the extent of the reserved or indirect control – indicates joint employer status. This standard extends beyond the policy adopted in BFI.