Return to Prior "Substantial Direct and Immediate
Control" Test Goes Into Effect April 2020
Back in September 2018, the National Labor Relations Board (NLRB
or Board) published a Notice of Proposed Rulemaking that would
define, by administrative rule, the standard for determining when
two unrelated employers are deemed "joint employers" of a
group of employees under the National Labor Relations Act.
(See our prior post
here.) The Board's initiation of the rulemaking
process came after several years of contentious litigation
resulting from its controversial 2015 decision in
Browning-Ferris Industries, which changed the standard
that had governed joint employer determinations for decades and
allowed for a joint employer finding based on only indirect, and
even unexercised control, by one employer over the terms and
conditions of another employer's employees. (Our
discussion of the Browning-Ferris Industries decision is
here.)
