As promised earlier this year, on September 6, 2022, the National Labor Relations Board (NLRB or Board) released a notice of proposed rulemaking (NPRM) on the standard for determining joint employer status under the National Labor Relations Act (NLRA or Act).
Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and work rules and directions governing the manner, means or methods of work performance.
Both direct evidence of control and evidence of reserved and/or indirect control would be considered during the analysis.
“Possessing the authority to control is sufficient to establish status as a joint employer, regardless of whether control is exercised,” according to the NPRM. “
The burden lies on an employee to establish—by a preponderance of evidence—that an employer is a joint employer.
According to the NPRM, the proposal is “intended to explicitly ground the joint employer standard in established common-law agency principles, consistent with Board precedent and guidance that the Board has received from the U.S. Court of Appeals for the D.C. Circuit.”
The NLRB noted that establishing a rule will provide clarity for all parties.
“[T]he Board believes that establishing a...
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