February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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NLRB Poised to Expand Definition of Joint Employers

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.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 251

About this Author

Robert E. Entin, Polsinelli, Labor Union Lawyer, Chicago, Employee Discipline attorney

Rob Entin is not your ordinary labor and employment attorney. Before joining Polsinelli, Rob worked as an in-house counsel for a large Chicago-area labor union. That unique work experience has helped clients in the defense of unfair labor practice charges, representation at arbitrations, and bargaining over collective bargaining agreements. Working for the "other side" enables him to explain the motivation and desires of unions and the employees they represent, and this insight facilitates the development of creative solutions for many complex and sensitive workplace...


Isaac Caverly focuses his practice on a wide variety of employment-related matters. Isaac is committed to understanding the industry in which clients operate and he provides valuable counsel to employers as they face sensitive workplace matters. His experience includes conducting discovery research and drafting memoranda related to employment cases and summary judgements as well as conducting employment due diligence for corporate transactions. Prior to joining Polsinelli, Isaac was a summer associate and served as a congressional intern and served as Co-President of the Iowa Student Bar...