{"id":9965,"date":"2026-03-04T16:32:23","date_gmt":"2026-03-04T16:32:23","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/nlrb-reinstates-narrower-joint-employer-standard-first-implemented-during-president-trumps-first-term\/"},"modified":"2026-03-04T16:32:23","modified_gmt":"2026-03-04T16:32:23","slug":"nlrb-reinstates-narrower-joint-employer-standard-first-implemented-during-president-trumps-first-term","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/nlrb-reinstates-narrower-joint-employer-standard-first-implemented-during-president-trumps-first-term\/","title":{"rendered":"NLRB Reinstates Narrower Joint-Employer Standard First Implemented During President Trump\u2019s First Term"},"content":{"rendered":"\n
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Summary<\/h2>\n

On February 25, 2026, the National Labor Relations Board (\u201cNLRB\u201d or \u201cBoard\u201d) issued a final rule for determining joint-employer status (\u201c2026 Rule\u201d) under the National Labor Relations Act (\u201cNLRA\u201d), formally rescinding the 2023 joint-employer rule (\u201c2023 Rule\u201d) that had been struck down by a court. The 2026 Rule reinstates the 2020 standard for determining joint-employer status and narrows the circumstances in which two or more employers may be found to be joint employers under the NLRA. Under the 2026 Rule, entities may be considered joint employers only if they possess and exercise \u201csubstantial direct and immediate control over one or more essential terms or conditions\u201d of employment, such as wages, benefits, hours of work, hiring, discharge, discipline, supervision, or direction.[1]<\/a><\/p>\n

The Latest in a Line of Changes to the Joint-Employer Standard<\/h2>\n

The issuance of the 2026 Rule marks the latest development in the NLRB\u2019s shifting joint-employer standards.<\/p>\n

In 2020, the Board adopted a rule requiring \u201csubstantial direct and immediate control\u201d over one or more \u201cessential terms or conditions of employment\u201d to establish joint liability (\u201c2020 Rule\u201d). Our post on the 2020 Rule can be found here.<\/p>\n

In 2022, the Board proposed replacing that standard with a test under which entities could be deemed joint employers based on \u201cauthority to control (whether directly, indirectly, or both), or .\u00a0.\u00a0. exercise the power to control (whether directly, indirectly, or both) one or more of the employees\u2019 essential terms and conditions of employment.\u201d[2]<\/a> It also proposed replacing the defined list of essential terms or conditions of employment with a non-exhaustive list. Our post on that proposal can be found here. This approach required only evidence of indirect control and expanded what constitutes essential terms or conditions of employment. In October 2023, the NLRB published the proposed rule as the 2023 Rule.[3]<\/a><\/p>\n

In March 2024, the U.S. Distrct Court for the Eastern District of Texas issued an order vacating the 2023 Rule.[4]<\/a> Since then, the NLRB has continued to apply the tighter standard from 2020.<\/p>\n

The 2026 Rule<\/h2>\n

Under the 2026 Rule, an entity is considered a joint employer only if it possesses and exercises \u201csubstantial direct and immediate control\u201d over one or more of those essential terms.[5]<\/a> That control should be \u201cdirect and immediate\u201d and have a \u201cregular or continuous consequential effect\u201d on the employees\u2019 essential terms and conditions.[6]<\/a><\/p>\n

The 2026 Rule also narrows the definition of \u201cessential term and conditions.\u201d The 2026\u00a0Rule returns to a defined list of essential terms and conditions for employment: wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.[7]<\/a> By contrast, the list of factors in the 2023 Rule was non-exhaustive and included other factors such as other compensation, scheduling, workplace health and safety, and work assignment.<\/p>\n

Other factors can be probative of joint-employer status, but only to the extent that the factor \u201csupplements and reinforces evidence\u201d of the entity\u2019s possession or exercise of direct and immediate control over the employee.[8]<\/a> These factors are: evidence of the entity\u2019s indirect control over essential terms and conditions of employment of another employer\u2019s employees, any authority over the essential terms and conditions of employment of another employer’s employees contractually reserved but not exercised by the entity, and the entity’s control over things other than the essential terms and conditions of employment.[9]<\/a><\/p>\n

No Notice and Comment Period Required<\/h2>\n

The NLRB characterized the rulemaking as ministerial, explaining that it merely implemented the Court\u2019s order vacating the 2023 Rule and therefore required no notice and comment period.[10]<\/a> The NLRB found good cause to make repeal and replacement of the 2023\u00a0Rule effective immediately.[11]<\/a><\/p>\n


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[1]<\/a> Withdrawal of 2023 Standard for Determining Joint Employer Status, 91 Fed. Reg. 9707 (Feb. 27, 2026) (to be codified at 29 C.F.R. \u00a7\u00a0103.40).<\/p>\n<\/div>\n

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[2]<\/a> Standard for Determining Joint-Employer Status, 87 Fed. Reg. 54641 (Sept. 7, 2022) (codified at 29 C.F.R. Part 103) at 54663.<\/p>\n<\/div>\n

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[3]<\/a> Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (Oct. 27, 2023).<\/p>\n<\/div>\n

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[4]<\/a> Chamber of Commerce <\/i>v. NLRB<\/i>, 723 F. Supp. 3d 498, 519 (E.D. Tex. 2024).<\/p>\n<\/div>\n

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[5]<\/a> Withdrawal of 2023 Standard for Determining Joint Employer Status, supra <\/i>note 1 at 9707.<\/p>\n<\/div>\n<\/div><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

Summary On February 25, 2026, the National Labor Relations Board (\u201cNLRB\u201d or \u201cBoard\u201d) issued a final rule for determining joint-employer status (\u201c2026 Rule\u201d) under the National Labor Relations […]<\/p>\n","protected":false},"author":1,"featured_media":9966,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[7530,7529,7528,369,304,415,3655,1088,963],"class_list":["post-9965","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-implemented","tag-jointemployer","tag-narrower","tag-nlrb","tag-president","tag-reinstates","tag-standard","tag-term","tag-trumps"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9965","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=9965"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/9965\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/9966"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=9965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=9965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=9965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}