NLRB Proposed Rule to Rescind and Replace Joint Employer Status Final Rule; Comment Period Extended to December 7

The National Labor Relations Board (NLRB) has extended the public comment period for the proposed rule, "Standard for Determining Joint Employer Status," by 30 days.

Comments are due December 7, 2022.

The National Labor Relations Board (NLRB) issued a proposed rule to rescind and replace the final rule entitled “Joint Employer Status Under the National Labor Relations Act,” which was published on February 26, 2020 and took effect on April 27, 2020. 

The proposed rule revises the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (NLRA), are joint employers of particular employees within the meaning of section 2(3) of NLRA. The proposed rule expands the factors that can establish a joint employment relationship to include indirect and unexercised control over the terms and conditions of a job. Employers would be considered joint employers if they co-determine “essential terms and conditions of employment,” such as scheduling, wages, and benefits. 

The proposed changes are designed to explicitly ground the joint-employer standard in established common-law agency principles and provide relevant guidance to parties covered by NLRA regarding their rights and responsibilities when more than one statutory employer possesses the authority to control or exercises the power to control particular employees’ essential terms and conditions of employment.

Comments regarding the proposed rule must be received by NLRB on or before November 7, 2022. Comments replying to comments submitted during the initial comment period must be received by NLRB on or before November 21, 2022.