NLRB extends deadline for comments on Proposed Joint Employer Rule

On October 4, the National Labor Relations Board (NLRB) announced it is extending the deadline for the public to submit comments one the proposed rule about the standard for determining joint employer status under the National Labor Relations Act (NLRA).

Interested parties may now file comments on or before Wednesday, December 7, 2022. Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before Wednesday, December 21, 2022. Absent extraordinary circumstances, no further extensions of the comment deadline will be granted.

The notice seeks to rescind and replace the joint employer rule that took effect on April 27, 2020.

Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as:

• Wages,
• Benefits and other compensation,
• Work and scheduling,
• Hiring and discharge,
• Discipline,
• Workplace health and safety,
• Supervision,
• Assignments, and
• Work rules.

The NLRB proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over terms and conditions of employment when analyzing joint employer status.

The NLRB joint employer standard has been subject to a great deal of flux in recent years. Rulemaking on this issue allows members of the public to provide input to the NLRB.

What should employers do?

Employers should begin reviewing any business relationships they have with staffing agencies, vendors, franchisees, contractors, etc. to look for potential risks should this proposed rule goes into effect.

Any contractual language that shows an employer exhibits some control over a worker’s terms or conditions of employment — such as scheduling, compensation, etc. — could inadvertently create a joint employer relationship.