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Joint Employment Quandary: Navigating NLRB's Expansive New Rule; Increased Risks for Union and Non-Union Employers

Essential Terms and Conditions of Employment; No Direct Control Required; Interaction With Other Agency Standards

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, January 24, 2024

Recorded event now available

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This CLE webinar will guide practitioners through the NLRB's new and expansive final rule setting the standard for joint employment including the increased risks and obligations this rule imposes on union and non-union employers. The panel will address how counsel may assist their clients to mitigate the risk of being found to be a joint employer, including contractual considerations with third parties and navigating various federal agency standards.


The NLRB recently released its expansive final rule, effective Feb. 26, 2024, setting the standard for joint employment under the NLRA and impacting union and non-union employers. The final rule creates risks for organizations that use outside workers or simply benefit from their services, including businesses and their service providers or franchisors and franchisees.

Under the final rule, joint employment may be found where one entity has direct and/or indirect control (including through an intermediary) over any of the essential terms and conditions of employment of another entity's employees, even if that control is only reserved or never actually exercised. The final rule sets forth an exhaustive list of terms and conditions of employment that are considered essential for the purposes of joint employment analysis--including wages, work hours, assignment of duties, work rules governing the manner in which the work is performed, and hiring and discharge.

Joint employer status could make one entity liable for the other entity's NLRA violations, even if the first entity did not participate in the underlying events. It could also expand the joint employers' bargaining obligations. Both are very costly to employers.

In addition to understanding the NLRB's joint employment rule and its effect on their clients, counsel should be aware of how the new rule interacts with and/or differs from other federal agencies' joint employment standards (e.g., DOL, EEOC) and how their clients can best navigate the various federal standards to minimize risk.

Listen as our expert panel guides practitioners through the NLRB's new rule setting the standard for joint employment. The panel will discuss best practices for mitigating risk, including third-party contractual considerations and navigating the maze of federal joint employment standards.



  1. History of NLRB's joint employer standard
    1. Browning-Ferris Indus. of Ca. (BFI) v. NLRB (D.C. Cir. 2018)
    2. Rescinding the 2020 rule
    3. September 2022 NPRM
  2. The NLRB's final rule
    1. Covered employers
    2. Modifications to the 2022 proposed rule and effect on employers
      1. Essential terms and conditions of employment
      2. Types of control necessary to establish joint employer status
        1. Reserved control
        2. Indirect control, including through an intermediary
        3. Irrelevant control
      3. Bargaining analysis and scope of bargaining obligations
  3. Outstanding issues and considerations yet to be addressed by the NLRB
    1. Common law factors
    2. Business-to-business relationships
    3. Quantum of proof and evidentiary standards
    4. Lack of exemptions
  4. Joint employment standards under other federal agencies
    1. DOL
    2. EEOC
  5. Best practices for compliance
    1. Contractual considerations
      1. Disclaiming reserved authority to control the terms and conditions of another employer's employees
      2. Defining NLRA rights and obligations
      3. Indemnification provisions
      4. Other considerations
    2. Navigating joint employment standards under various federal statutes


The panel will review these and other important considerations:

  • How does the final rule modify the 2022 proposed rule?
  • How does the final rule define essential terms and conditions of employment?
  • What types of control over another entity's employee(s) are necessary to establish joint employer status?
  • How may counsel help their clients mitigate the risk of joint employment under the NLRA when negotiating and drafting contracts with third parties?
  • What are the potential consequences of being found to be a joint employer under the NLRA?
  • How does the NLRB's joint employment standard differ from other federal agencies' standards determining joint employment? What impact may this have on employers?


Fontana, Matthew
Matthew A. Fontana

Faegre Drinker Biddle & Reath

Mr. Fontana handles a variety of traditional labor matters for both public and private sector clients under the...  |  Read More

Holland, Ronald
Ronald Holland

Greenberg Traurig

Mr. Holland litigates on behalf of employers in state and federal courts, focusing on wage and hour class actions,...  |  Read More

Obod, Marjorie
Marjorie McMahon Obod

Partner, Co-Chair Labor & Employment Group, Chair Educational Institutions Group
Dilworth Paxson

Ms. Obod dedicates her practice to providing counsel to corporate clients and nonprofit organizations in labor,...  |  Read More

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