1. The National Labor Relations Board (NLRB) announced on Dec. 10 that it will again revisit its joint employer standard.

The agency’s 2022 regulatory agenda includes plans to engage in the formal rulemaking process on the standard in February. The NLRB’s joint employer analysis has significant implications for employers, as it determines when one entity jointly employs another firm’s workers. Among other results, a joint employer finding makes both entities liable for each other’s unfair labor practices. Joint employment has been one of the most controversial topics in labor law in recent years. The Obama-era NLRB reversed decades of precedent in its 2015 Browning-Ferris Industries decision, finding joint employment status even where one of the entities exercised only indirect control over another’s employees or had the unexercised right of control over such employees. 362 NLRB 1599 (2015). After unsuccessfully attempting to restore the pre-Browning-Ferris standard through case adjudication, the Trump-era NLRB issued a formal rule in 2020, setting the current employer-friendly standard. Under that standard, an entity must have direct and immediate control over employee terms and conditions of work to be considered a joint employer (NLRB Rules and Regulations, §103.40). Given the Democratic majority on the current NLRB, it is likely that it will restore the Browning-Ferris standard or issue a similar rule.

1. On Dec. 27, the NLRB solicited public input on its analysis...

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