NLRB’s Formal Withdrawal of the 2023 Rule Officially Reinstates 2020 Joint Employer Rule

The National Labor Relations Board made it official; The 2020 Standard for Determining Joint Employer Status remains in place after the board published a final rule formally reinstating it and dismissing the 2023 rule – itself vacated by a court in 2024before it took effect, resulting in the 2020 rule remaining in effect.

For businesses that had been operating under the rule the court left in effect, nothing changes. The now reinstated 2020 rule is employer friendly with a strict definition of a joint employer: one must possess and exercise substantial, direct, and immediate control – defined as having a regular or continuous consequential effect – over at least one essential condition of employment of someone else’s employee.

The formal withdrawal of the 2023 rule went into effect Feb. 27, 2026, and it establishes the standard for when two entities constitute joint employers for purposes of collective bargaining obligations and claims of unfair labor practices under the National Labor Relations Act (NLRA).

There are eight terms and conditions of employment. A business must have substantial, direct, or immediate control over at least one of these to be considered a joint employer, and the rule makes it clear that sporadic control or control on a de minimis basis does not make one a joint employer. The terms and conditions are:

• Wages
• Benefits
• Hours of work
• Hiring
• Discharge
• Discipline
• Supervision
• Direction

What Was the Key Difference Between the 2020 and 2023 Rules?

The significant difference between the 2020 rule and the 2023 rule is the element of control. Under the vacated 2023 rule, an employer could be considered a joint employer if the entity had or retained authority to control, directly or indirectly, at least one of the essential terms and conditions of employment, regardless of whether they exercised that control. Another difference was that the list of essential terms under the 2023 rule had been expanded to include, among others, workplace health and safety conditions.

Do Other Agencies Address Joint Employment?

While other agencies might rely on similar criteria when determining joint employer status under specific laws, the NLRB’s rule on joint employment is specific to joint employer status under the NLRA. The NLRB’s rule should not be confused with the U.S. Department of Labor’s (DOL) standard for determining joint employment under the Fair Labor Standards Act (FLSA) and other laws.