On September 7, 2022 the National Labor Relations Board (NLRB or the Board) issued a new Proposed Rule governing joint employer status. The proposed rule seeks to change the standard for determining whether two collaborating employers will be considered joint employers under the National Labor Relations Act (Act). If finalized, the new rule is expected to take effect in 2023.
The Act governs the rights of employees to organize, bargain collectively, and engage in other activities for the purpose of mutual aid or protection. The Act also governs the rights and obligations of employers and labor organizations in the collective bargaining context.[1]
The Act does not specifically address joint employment in terms of when collaborating employer entities will be deemed a joint employer. As such, the Board possesses discretion to issue, revise, and interpret the joint employer standard—which directly influences the collective bargaining obligations and unfair labor practice liability of employers who partner with entities such as staffing agencies, subcontractors, and other indefinite labor arrangements. The Board has repeatedly revised this standard as presidential administrations (and the political composition of the Board) change. The NLRB shifted the standard under both the Obama and Trump administrations, and the Biden administration seeks to revise the standard again to specifically rescind the changes made under the Trump administration, which took effect on April 27,...
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