On October 27, 2023, the National Labor Relations Board (NLRB) published its final rule on the standard for determining joint-employer status under the National Labor Relations Act, effective December 26, 2023. The new rule rescinds the Board’s 2020 rule and outlines the common law approach. The Rule is subject to Congressional review.
Under the new final rule, an entity may be considered a joint-employer of another employer’s employees, if they share or co-determine an employees’ essential terms and conditions of employment.
The seven (7) essential terms and conditions to consider in determining whether employers are joint-employers are:
- Wages and benefits
- Work hours and scheduling
- The assignment of an employees duties to be performed
- The supervision of an employees performance of duties
- Work rules and directions set by an employer that controls the manner, means, and methods of the performance of duties, as well as the grounds for discipline
- The length of employment, including hiring and firing
- Working conditions that are related to an employees health and safety
If an employer has the authority to control at least one of the items that are listed above (1-7), whether or not the employer exercises the authority, the NLRB may very well find the employers to have met the joint-employer standard. It should be noted that indirect control alone may provide joint employer status, even if an employers control has not been exercised.
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