The NLRB’s Proposed Rule

On September 13, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced that, the next day, it would publish a proposed rule (“the proposed rule”) governing how the term “joint employer” is defined
in connection with the National Labor Relations Act (“NLRA”). As promised, the NLRB published the proposed rule on September 14, 2018.  Under the proposed rule: “an employer may be considered a joint employer
of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.

More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.”

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