On September 14, 2018, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking to establish the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act (NLRA), are a joint employer of a group of employees under the NLRA.

Under the proposed regulation:

“An employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of another employer’s employees in a manner that is not limited and routine.”

Seems crystal clear – but remember—this is only a proposed rule! The public comment period is open until November 12, 2018. Anyone can submit a comment on the proposed rule. The NLRB, however, does not base its final rule on the number of comments in support of the rule over those in opposition to it. The NLRB will review the comments and must base its reasoning and conclusion on the rulemaking record consisting of the comments, scientific data, expert opinions and facts accumulated during the pre-rule and proposed rule stages. So until then, we wait.

During the comment period and until a final rule is published and effective, the 2015 decision in Browning-Ferris is still the test for determining joint employer status.

Keep in mind that courts and agencies have developed various legal tests to determine joint employment. Other laws such as the Fair Labor Standards Act (FLSA) and Title VII have their own standards for determining whether a joint employer relationship exists. How’s that for muddying the water?