The National Labor Relations Board has issued a proposed rule that would, once again, relax the burden to demonstrate joint employer liability. This action is a step toward reversing the Trump administration’s rule which provided that an employer only can be a joint employer of an unrelated entity if it exercised direct and immediate control over the unrelated entity’s employees. 

The proposed rule, which, based on the composition of the current Labor Board, will likely take effect, makes it easier to establish a joint employer relationship. For example, if companies share or co-determine essential job terms, joint employer status may be found, and both employers could be found liable for unfair labor practices.  It could also result in a non-employer (or an entity who believes it is not the employer) being required to engage in collective bargaining over non-employees.  The non-employer also could be subjected to picketing without violating the laws against secondary boycotts.  This would be the case even if an employer has indirect or unexercised control over the terms and conditions of a job.