News & Commentary

October 27, 2023

Greg Volynsky

Greg Volynsky is a student at Harvard Law School.

In Todays News & Commentary, the NLRB yesterday issued its final rule for determining joint-employer status. The rule is the latest in a long saga. 

In 1944, the Supreme Court decided in NLRB v. Hearst Publications that the NLRA includes independent contractors. Three years later, Congress adopted the Taft-Hartley Act, which excluded independent contractors from the definition of “employees” under the NLRA. The question remained, however, how to distinguish between independent contractors and employees.

In Boire v. The Greyhound Corporation (1964), the Supreme Court stated that determining whether employers “possess[] sufficient control over the work of the employees” to constitute joint employers was a factual inquiry for the Board. The following year, the Board held that joint employers “share, or codetermine, those matters governing essential terms and conditions of employment.” The Third Circuit adopted similar language in 1982. 

For the subsequent three decades, the NLRB narrowed the criteria for joint-employer status. The Board assessed whether employers “meaningfully affect[]”employment terms and conditions, while setting aside unexercised authority to impact employment. Additionally, the control exerted needed to be direct and not merely “limited and routine.”

In 2015, the Board consciously departed from decades of Board precedent with Browning-Ferris. Here, the NLRB took into account both reserved and indirect control when determining joint-employer status. The D.C. Circuit subsequently upheld this broader Browning-Ferris standard.

In 2020, after failing to overturn Browning-Ferris via adjudication, the Trump Board promulgated a rule reverting to the narrower pre-Browning Ferris standard. However, two years later, the NLRB issued a Notice of Proposed Rulemaking, proposing to a return to the Obama-era rule. The NLRB published the final rule today. The new rule factors in both (1) authorized but unexercised control and (2) indirect control over employment conditions.

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