Companies attempting to determine whether they are joint employers of certain workers under the National Labor Relations Act (Act) have been confronted with a shifting landscape during the past few years as the National Labor Relations Board (Board) repeatedly changed its approach to the issue. Recently, however, the Board Chairman confirmed that the Board planned to utilize its rulemaking process to determine the proper standard in order to provide employers clarity and consistency. Rather than addressing the proper standard in a single case limited to the facts presented, rulemaking allows the Board to consider all views, address the issue in a comprehensive manner, and provide certainty to parties. It also makes it more difficult for the standard to be changed without resorting to the rulemaking process.
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