On September, 14, 2018, the NLRB published a proposed rule to establish the standard for determining whether an employer is a joint employer under the NLRA. Under the proposal, an employer may be considered a joint employer of a separate employer's employees only if:

The proposed rule includes 12 examples of the NLRB's application of this standard to various employment scenarios. The Preamble also contains Member McFerran's dissenting view of the majority's proposal. (83 Fed. Reg. 46681 (Sept. 14, 2018).)

The NLRB's determination that a joint-employment relationship exists has significant consequences for employers, unions, and employees. For example, joint-employer status impacts whether:

There are additional repercussions as to bargaining unit determinations in election proceedings and multi-lateral collective bargaining obligations (for more information, see Legal Update, Employers' Consent Not Required for Bargaining Units Comprised of Both Solely- and Jointly-Employed: NLRB).

As the NLRB highlights in the Preamble to its proposal, the law governing the joint-employment doctrine under the NLRA has undergone dramatic changes during the last three years:

Through this proposed rulemaking, therefore, the NLRB seeks to resolve ongoing uncertainty in the legal landscape surrounding the joint-employment doctrine under the NLRA, and to promote greater predictability and consistency with respect to these critical determinations.

The initial comment period for the proposal closes on November 13, 2018, and any comments replying to comments previously filed by other parties during the initial comment period are due by November 20, 2018. Employers and individuals wishing to comment should review the proposed rule's content and follow the instructions on how to submit comments to the NLRB.

On October 31, 2018, the NLRB extended the deadline for initial comments on the NLRB’s proposed rule to December 13, 2018. Comments replying to submitted initial comments are now due by December 20, 2018. (83 Fed. Reg. 55329 (Nov. 5, 2018).)

On December 10, 2018, the NLRB further extended the time for submitting comments on the NLRB's proposed rule to January 14, 2019. Comments replying to submitted initial comments are now due by January 22, 2019.

In Browning-Ferris Industries of California, Inc. v. NLRB, the majority of a three-judge panel of the US Court of Appeals for the District of Columbia Circuit affirmed in part the NLRB's joint-employer standard, but granted in part the putative joint employer's petition for review. The DC Circuit ruled that the NLRB may, consistent with the common law of agency, consider both reserved authority to control and indirect control to be relevant factors in its joint-employer analysis. However, the court held that the NLRB failed to adequately articulate and apply the indirect-control element to the case's facts. The NLRB also failed to explain how it would determine "whether the putative joint employer possesses sufficient control over employees' essential terms and conditions of employment to permit meaningful collective bargaining," the second step in its joint employer analysis after it reviews the common law factors. The DC Circuit remanded the case to the NLRB for further proceedings consistent with its opinion. ( (D.C. Cir. Dec. 28, 2018).) Barring a petition for en banc review, the remanded case potentially provides the NLRB an opportunity to review and revise its joint-employer standard within the limits of the law of the case on a track parallel to its pending rulemaking. (See Legal Update, DC Circuit Upholds Part of NLRB's 2015 Joint Employer Analysis, Pans its Ambiguous Application to Facts.)

On January 11, 2019, the NLRB further extended the time for submitting comments on the NLRB's proposed rule. Comments regarding the proposed rule must be received by the Board on or before January 28, 2019. Comments replying to submitted initial comments are now due by February 11, 2019.

On January 17, 2019, the NLRB announced that it is providing an email address, [email protected], as an alternate method for submitting public comments on the proposed joint-employer rulemaking due to the partial shutdown.