NLRB Issues New Joint Employer Standard (Yet Again) (US)

On October 26, the National Labor Relations Board (NLRB or Board) once again changed its standard for when an organization constitutes a "joint employer" of another organization's employees for purposes of the National Labor Relations Act (NLRA). This standard creates new risks and potential liability for employers in franchise relationships, as well as those who use vendors, temporary labor, gig workers or other contractors. Those risks are magnified further by the Board's other recent changes to federal law, including expanded remedies for violations by employers.

As experienced observers know, the Board has changed its joint employer standard several times in the recent past. In 2015, the Board drew significant backlash when it adopted a joint employer standard that considered whether the alleged joint employer had "reserved and indirect control" over the workers at issue. This standard allowed an organization to constitute an employer even if it never actually