The National Labor Relations Board will likely issue its final rule on February 26 regarding joint-employer status under the National Labor Relations Act. According to a notice issued by the Board today, “[t]he final rule restores the joint-employer standard that the Board applied for several decades prior to the 2015 decision in Browning-Ferris, but with the greater precision, clarity, and detail that rulemaking allows. As a result, the final rule provides clear guidance in this significant area of the law.” This is good news for employers.
The notice also indicates that, “[t]o be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. The final rule defines key terms, including what are considered ‘essential terms and conditions of employment,’ and what does, and what does not, constitute ‘direct and immediate control’ as to each of these essential employment terms. The final rule also defines what constitutes ‘substantial’ direct and immediate control and makes clear that control exercised on a sporadic, isolated, or de minimis basis is not ‘substantial.’”
We will provide an update on this matter once we have reviewed the final rule.