Last week, the United States Court of Appeals for the Fifth Circuit dismissed an appeal by the National Labor Relations Board (“Board” or NLRB) of a federal district court’s decision to vacate a new joint employer rule that initially was slated to take effect months ago. The vacated rule sought to greatly expand the definition of an employer, and, in turn, entities that could be subject to liability under the National Labor Relations Act (previously discussed here).

The Fifth Circuit’s decision stemmed from a motion the Board filed to withdraw its appeal. In that motion, the NLRB said it was seeking dismissal “to allow it to consider options for addressing the outstanding joint employer matters before it.” For now, the joint employer rule established by the Board in 2020 pursuant to which one entity could be a joint employer of another entity’s employees only if it exercises actual and direct control over a specified essential term of employment remains in effect.

This likely is not the final chapter in the Board’s joint employer saga. We will continue to keep you posted on further developments.