NLRB Proposes Changes to Joint-Employer Standard

Sep 7, 2022

by Adam Henningsen

The National Labor Relations Board recently released a notice of proposed rulemaking addressing the standard for determining joint-employer status under the National Labor Relations 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, 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.

The proposed rule would rescind and replace the joint-employer rule that took effect on April 27, 2020. In its notice of proposed rulemaking, the NLRB said the Trump administration’s rule “repeats the errors” that the board corrected in Browning-Ferris Industries, an Obama-era decision that solidified the definition of “joint employer” with respect to the National Labor Relations Act to include those that have “indirect control” over workers. The 2020 rule reversed the Browning-Ferris decision by stating that an entity may be considered a joint employer of a separate employer’s employees only if it possesses and exercises substantial direct and immediate control over the employees”™ essential terms of employment. The new proposed rule essentially reinstates the Browning-Ferris decision.

The new rule would substantially impact businesses that use temporary labor, employ a franchise model, or otherwise use indirect staffing models.

The NLRB will accept public comments regarding the proposed rule change through November 7, 2022, and it will collect replies to those comments through November 21, 2022.

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Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.

Adam Henningsen practices primarily in the areas of education law, labor and employment law, and civil litigation. Adam regularly works with school districts and individual administrators on matters including labor and employment, contracting, student discipline, special education, and state and federal regulation compliance. He has successfully represented school districts, charter schools, and other employers in State and Federal Court, as well as administrative agencies including the Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, the Missouri Administrative Hearing Commission, and the United States Department of Education Office for Civil Rights. Prior to joining the firm, Adam practiced school law at a firm in Kansas City, Missouri.