NLRB Issues Its Final Rule For Its New Joint Employer Standard

This morning the National Labor Relations Board (the "Board") unveiled the final rule setting forth the new legal test it will apply in analyzing whether affiliated businesses are "joint employers". The final rule, which will be effective on April 27, 2020, can be found here.

Background

On September 13, 2018 the Board published its proposed rule for modifying the existing joint employer standard. An extensive notice and comment period followed, which yielded approximately 29,000 comments before the January 28, 2019 deadline. Now, over a year after the comment period closed, the final rule is ready.

Under the existing standard, the Board would find an affiliated company to be a joint employer of another employer's employees merely because the affiliated company possessed the authority to control those employees' terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. In other words, an entity could be found to be a