The National Labor Relations Board has released a proposed new standard for determining joint employer status under the National Labor Relations Act that provides a more expansive definition of the term than under the now-repealed rule put in place under the Trump administration, in the latest proposed iteration of this rule.
The NRLB said in a statement Tuesday that under the proposed rule, two or more employers would be considered joint employers if they “share or co-determine the matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and hiring and firing, among others.
“The Board proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms of employment when analyzing joint employer status,”
; the statement said.In 2020, a Trump-era rule that favored employers introduced a balancing test that relaxed the Obama administration’s rule on who would be considered a joint employer.
The Biden administration rescinded the Trump administration’s rule in July 2021, effective September 2021, and the DOL stated that its description of joint employment was “contrary to statutory language and congressional intent” and “failed to take into account the Department’s previous joint employment guidance.” “
The latest proposal was endorsed by NLRB Chair Lauren McFerran and the NLRB’s two Democratic members, Gwynne A. Wilcox and David M. Prouty, and opposed by its two Republican members, Marvin E. Kaplan and John F. Ring.
Comments on the proposed rule must be received by November 7 and responses to comments by November 21.
In August, the NLRB overturned a decision by the Trump administration, ruling that employers’ attempts to impose restrictions on employees’ display of union insignia, including by wearing union clothing, are “presumptively unlawful, absent special circumstances.”
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