NLRB’s latest rule means big changes ahead on joint employment front

by Tammy Binford

The National Labor Relations Board’s (NLRB) new rule on joint employment puts more employers at risk of joint employer status, meaning they will bear more responsibility related to unionization, bargaining, and unfair labor practice charges.

The Board’s new rule, issued October 26, replaces a rule issued in 2020 by the Trump administration’s Board. That rule said an employer could be in a joint employment relationship with a different employer’s employees only if it exercised direct control over those employees’ essential terms of employment.

The new rule is similar to the Obama-era standard set in the NLRB’s 2015 Browning-Ferris decision, but the new rule goes further. Under the new rule, which is set to take effect on December 26, entities may be considered joint employers if each entity has an employment relationship with the employees and the employers share or co-determine one or more of the employees’ essential terms and conditions of employment.

The new rule defines terms and conditions of employment exclusively as:

• Wages, benefits, and other compensation;
• Hours of work and scheduling;
• The assignment of duties to be performed;
• The supervision of the performance of duties;
• Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
• The tenure of employment, including hiring and discharge; and
• Working conditions related to the safety and health of employees.

Employer concerns