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On September 6, 2022, the NLRB issued a proposed series of new rules on “joint employer” status that will make it easier for the Board and labor unions to have two separate employers classified as “joint employers.”

The actual document (scheduled to be published in the Federal Register on September 7) is 70 pages long, counting the dissent.

Contained in the proposed rules are two key changes to existing law that expand the definition of who would be considered a “joint employer:”

  1. The NLRB proposes to return to an “indirect control” test where one employer can be considered a joint employer with another employer if they share or codetermine the essential terms and conditions of employment for one of the employer’s employees.  These essential terms and conditions of employment include, but are not limited to: wages, benefits, and other compensation; hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and work rules and directions governing the manner, means, or methods of work performance.
  2. Under the NLRB’s proposed new rule, one employer would not have to actually exercise control over the terms and conditions of employment of another employer for them to be considered “joint employers” — if an employer possesses either the authority to control (whether directly or indirectly) or the power to control (whether directly or indirectly) even a single essential term or and condition of employment of another employer’s employees, they will be considered “joint employers” under the NLRB’s proposed test.

Public comments on these proposed rules are due on or before November 7, 2022.  The actual rule making process will probably not be completed this year, but we should expect that these new rules will initially take effect, subject to modification and court challenge.