The National Labor Relation Board’s (“NLRB”) joint-employer standard has swung back and forth for nearly a decade, with the newly-appointed Trump NLRB most recently releasing a final rule reinstating the 2020 joint employer standard. For private California employers – especially those using staffing agencies, subcontractors, franchise models, or management agreements – the rule determines who can be included in a bargaining unit and who may be liable under a collective bargaining agreement (CBA).
Here’s where things stand and why it matters.
Pre-2015: The NLRB required substantial, direct, and immediate control over essential employment terms to find joint-employer status.
2015 – Browning-Ferris Expansion: The Board broadened the test to include indirect control or even reserved (but unexercised) authority, dramatically increasing joint-employer exposure.
2020 Rule: The Board formally adopted a narrower, employer-friendly rule requiring substantial direct and immediate control over essential terms such as wages, discipline, hiring, and supervision.
2023 Rule (Now Blocked): A new Board majority finalized a regulation expanding joint-employer status again—allowing indirect or reserved control over essential terms to suffice. In conjunction with a lawsuit filed by the United States Chamber of Commerce and other business groups, a federal court in Texas vacated the 2023 Rule in March 2024, reinstating the 2020 standard.
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