Highlights

• The National Labor Relations Board (NLRB) issued a new rule on Oct. 26, 2023, that significantly expands who qualifies as a joint employer under the National Labor Relations Act.
• The effective date of the new joint employer rule, which originally was Dec. 26, 2023, has been extended to Feb. 26, 2024, to facilitate resolution of legal challenges with respect to the rule.
• The new rule will be applied only to cases filed after it becomes effective.

The National Labor Relations Board (NLRB) on Oct. 26, 2023, issued a new rule that significantly expands who qualifies as a joint employer under the National Labor Relations Act. Under the new rule, which rescinds the prior 2020 rule implemented by the NLRB under the Trump Administration, an entity may be considered a joint employer of another entity's employees if the employers "share or codetermine" the employees' essential terms and conditions of employment. The new rule defines "share or codetermine" to mean for an employer "to possess the authority to control (whether directly, indirectly or both) or to exercise the power to control (whether directly, indirectly or both) one or more of the employees' essential terms and conditions of employment." The party asserting joint employer status has the burden of establishing it by a preponderance of the evidence.

The new rule provides an exhaustive list of what qualifies as essential terms and conditions of employment for purposes of a joint employer determination: "(1)...

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