On Feb. 23, the National Labor Relations Board (NLRB) reaffirmed the landmark 2015 Browning-Ferris joint-employer standard — but in narrow fashion and only because the U.S. Court of Appeals for the D.C. Circuit directed it to do so. This latest twist underscores ongoing uncertainty about when an employer may be deemed a “joint employer” under the National Labor Relations Act (NLRA).

A joint-employer relationship refers to when different entities exercise the requisite control over an employee that they have each formed an employment relationship with that individual. When the relationship is formed, that creates certain rights and obligations between the parties under different acts, including the Fair Labor Standards Act, Title VII of the Civil Rights Act, and the NLRA.

The NLRB’s 2015 decision in Browning-Ferris expanded joint-employer status to include indirect or reserved control, overturning prior precedent. Following subsequent developments within NLRB precedent and 2020 rulemaking, the NLRB reinstated the pre-Browning-Ferris requirement of direct and immediate control. Ruling in the Browning-Ferris matter in 2020, the NLRB ruled the expanded test couldn’t apply retroactively and dismissed the complaint. However, in 2022, U.S. Court of Appeals for the District of Columbia rejected this reasoning and remanded the case again.

In 2023, the NLRB published a final rule that rescinded the 2020 rulemaking and codified the Browning-Ferris framework, recognizing that...

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