NLRB delays effective date for revised ‘joint employer’ rule

Washington — The National Labor Relations Board has pushed to Feb. 26 the effective date of its revised “joint employer” rule, saying the move will “facilitate resolution of legal challenges.”

An NLRB press release notes that the updated standard – initially set to go into effect Dec. 26 – will be applied only to cases filed on or after Feb. 26.

NLRB published the revised rule, the second change in less than four years, on Oct. 27. The agency overturned a 2020 rule to return to a previous definition of a joint employer: when two or more entities “share or codetermine” one or more of an employee’s essential terms and conditions of employment. Those “essential terms and conditions” include worker safety and health. Others:

• Wages, benefits and other compensation
• Hours of work and scheduling
• Assignment of duties to be performed
• Supervision of the performance of duties
• Work rules and directions governing the manner, means and methods of the performance of duties and the grounds for discipline
• Tenure of employment, including hiring and discharge

“The 2023 rule more faithfully grounds the joint-employer standard in established common law agency principles,” a previous press release from NLRB stated. “In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect.

“The common law clearly recognizes that reserved control and indirect control are relevant to the analysis. By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold of ‘substantial direct and immediate control’ over essential terms of conditions of employment, which has no foundation in common law.”

NLRB Chair Lauren McFerran added that the board will still determine on a case-by-case basis whether two or more employers meet the “joint employer” standard.