On October 27, 2023, the National Labor Relations Board (“NLRB”) published a final rule regarding Joint Employer Status.  The new rule, which is similar to the common law Joint Employer standard prior to 2020 (see NLRB Fact Sheet: https://www.nlrb.gov/sites/default/files/attachments/pages/node-9558/joint-employer-fact-sheet-2023.pdf), goes into effect on December 26, 2023, and states that mere authority to control terms and conditions of employment, regardless of whether such authority is actually exercised, dictates joint employer status under the National Labor Relations Act (“NLRA”).

Under the new rule, an entity may be considered a joint employer of an employee if that entity has an employment relationship with the employee and has the authority to control essential terms and conditions of employment, defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.

The NLRB chose not to include any exceptions based on industry, business type, or entity size, though the Board noted in the Rule that the NLRB would be “mindful that applying the final rule will require sensitivity to industry-specific norms and practices, and we will take any relevant industry-specific context into consideration when considering whether an entity is a joint employer.”

The NLRB’s final rule may be viewed in the Federal Register here:  https://www.federalregister.gov/documents/2023/10/27/2023-23573/standard-for-determining-joint-employer-status.