NLRB Issues Final Rule: Standard Used to Determine Joint-Employer Status

On October 26, 2023, the National Labor Relations Board (NLRB) issued its new final rule regarding the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA).

An employer will now be a joint employer if it shares or codetermines one or more of the factors below:

  • Wages, benefits, and other compensation
  • Hours of work and scheduling
  • Assignment of duties to be performed
  • 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
  • Tenure of employment, including hiring and discharge
  • Working conditions related to the safety and health of employees.

In particular, the new rule contemplates joint employer status regardless of whether control is actually exercised, and without regard to whether the exercise of control is direct or indirect.  Comparatively, the old rule required a joint employer to exercise substantial direct and immediate control.  

The effective date of the new rule is December 26, 2023. Interestingly, this is the same date that the NLRB’s new, faster election rules take effect. Considering its recent decisions, the NLRB is likely advancing efforts that make it easier and quicker to form a union.

For questions regarding how this will affect your business, please contact Daniel J. SobolBrandon S. Shemtob or the Stevens & Lee attorney with whom you regularly work.