On September 7, 2022, the NLRB released a Notice of Proposed Rulemaking (“NPRM”) and request for public comment regarding its latest iteration of the joint employer rule. The NPRM proposes to rescind and replace the current final rule, entitled “Joint Employer Status Under the National Labor Relations Act,” which took effect on April 27, 2020.
The proposed rule would revise the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (“Act”), are joint employers of particular employees within the meaning of section 2(3) of the Act. Section 2(2) of the Act defines an “employer” to include “any person acting as an agent of an employer, directly or indirectly.” The Act itself is silent regarding the definition of joint employer.
The proposed rule seeks to reinstate the previously overruled Browning-Ferris decision. 362 NLRB 1599 (2015). Under the NLRB’s proposal, employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” including wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. In addition to direct evidence of control, the Board will consider evidence of reserved and indirect control over terms and conditions of employment when analyzing joint employer status.
The proposed rule, absent changes pursuant to...
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