The National Labor Relations Board (“NLRB”) has issued a notice of proposed rulemaking, which would significantly alter the standard to determine who is a “joint employer” under the National Labor Relations Act (“NLRA”). The proposed rulemaking seeks to end what NLRB Chairman Lauren McFerran described in the NLRB’s press release as a “great deal of uncertainty and litigation in recent years” surrounding the joint employer standard, and provide “a clear standard for defining joint employment that is consistent with controlling law.” This move not only changes the prior understanding of the joint employer standard, but is also indicative of the Biden Administration turning into a reality the President’s campaign promises aimed at strengthening worker protections and labor unions, reversing prior Board decisions, and restoring the broad definition of joint employment. We previously discussed other recent actions taken by the NLRB in an earlier blog post, which you can find here.
Background
It is worth first taking a step back to review how the Board arrived at this most recent iteration of the joint employer standard. The joint employer standard has been a topic of significant interest over the better part of the past seven years, beginning with the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015) (BFI), which declared that employers were joint employers if they “share or codetermine those matters governing the essential terms and...
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