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NLRB Issues Proposed Rule for Determining Joint-Employer Status

September 12, 2022

Whether two entities are “joint employers” is an important question under the National Labor Relations Act.  Consider Company A, which contracts with Company B, a staffing company, to provide maintenance or other services at Company A’s facility.  The maintenance workers are employed directly by Company B.  While working at Company A’s facility, Company B’s employees file unfair labor practice charges against Company B and also vote to form a union.  Can Company A be held liable for the unfair labor practices committed by Company B?  Can Company A be ordered to bargain with the union, alongside Company B?

On September 6, 2022, the National Labor Relations Board issued a Notice of Proposed Rulemaking, which would drastically alter the test used for determining joint-employer status under the NLRA (“2022 Proposed Rule”).  The 2022 Proposed Rule would rescind the joint-employer rule very recently issued in 2020 and replace it with a union-friendly test that would expand the circumstances in which Company A could be deemed a “joint employer” of Company B’s employees, and therefore be subject to liability and bargaining obligations under the NLRA.

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