NLRB Proposes New Joint Employer Rule

Welp, this is one of those pendulum issues . . . it swings back and forth depending on the administration. Earlier this week, President Biden's National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) (News Release | NPRM).

Not official use.

In short, the proposed rule would make it easier for two entities sharing a relationship with employees to be deemed "joint employers" for purposes of the National Labor Relations Act. Think collective bargaining units, union formation, liability for unfair labor practices, etc. The NPRM proposes to rescind the Trump administration's rule that took effect on April 27, 2020. 

So, what does the new rule do? The NLRB summarizes it as:

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, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The Board proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.

Comments due by November 7, 2022 and replies to comments by November 21, 2022. We're probably looking at an effective date sometime in 2023.