Speak now or forever hold your peace: NLRB proposes new joint employer rules

Over the last decade, there has been a significant amount of litigation over how to determine if multiple companies are joint employers of a workforce. Joint employer status can create significant liability issues for the secondary employer in areas such as wages and safety matters. The rules governing that determination may be about to change.

Defining ‘joint employer’

On September 7, 2022, the National Labor Relations Board (NLRB) announced a notice of proposed rulemaking that would replace the 2020 guidance for assessing joint employment status.

The issue in many of the previously contested cases has been how joint employment is defined, especially in the area of indirect control—in other words, control of employees that isn’t clearly specified by a secondary authority.

The proposed rules reestablish a strong indirect control component, so long as the control “bears on employees’ essential terms and conditions of employment.” This intentionally broadens the application of the rule to multiple employers.