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NLRB Vacates Decision Revising Joint-Employer Standard

The National Labor Relations Board (NLRB) has vacated a decision that revised the standard for assessing joint-employer status under the National Labor Relations Act.

Board Restores Prior Standard

The NLRB has restored the prior joint-employer standard (the “Browning-Ferris” standard), under which reserved authority to control terms and conditions of employment—even if not exercised—is relevant to whether one employer possesses sufficient control over employees to qualify as a joint-employer. Additionally, if otherwise sufficient, control exercised indirectly (such as through an intermediary) may establish joint-employer status.

Background

Under the vacated decision, two or more entities would have been considered joint-employers under the National Labor Relations Act if one entity had exercised control over essential employment terms of another entity’s employees, and had done so directly and immediately in a manner not limited and routine. This standard is no longer in effect.

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