The National Labor Relations Board has extended the effective date of its “joint employer” rule to Feb. 26, two months later than the original effective date.
The agency made the announcement Thursday afternoon and said the delay was “to facilitate resolution of legal challenges with respect to the rule.” The new standard will be applied to cases only after the rule becomes effective, the NLRB said.
The board issued the final rule in October after proposing a rule in September 2022 and receiving more than 13,000 comments. It rescinded and replaced one, promulgated in 2020 under the previous board, that some viewed as being more favorable to employers.
Long-term care providers that use temporary or contract workers, as well as operators that are part of franchises, and others, are affected.
“Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or co-determine one or more of the employees’ essential terms and conditions of employment,” the NLRB said in October. Those terms and conditions, according to the board, include:
- wages, benefits and other compensation;
- hours of work and scheduling;
- the assignment of duties to be performed;
- the supervision of the performance of duties;
- work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
- the tenure of employment, including hiring and discharge; and
- working conditions related to the safety and health of employees.
“In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect,” the NLRB said in a fact sheet. “By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold of ‘substantial direct and immediate control’ over essential terms of conditions of employment, which has no foundation in common law.”
Senior living and care industry representatives previously told McKnight’s Senior Living that the new rule was “much broader and more vague” than the previous rule and will present greater risk for employers that contract with services providers, “creating greater liability for the actions of others.”
The rule faces a lawsuit from the US Chamber of Commerce and a coalition of business groups that calls the new rule overly broad and said that it will “cripple small businesses in numerous sectors.”
Additionally, 62 business associations, including the American Seniors Housing Association, sent a letter to Congress earlier this month urging legislators to support a Congressional Review Act resolution to nullify the rule. The bipartisan resolution was introduced by Sens. Bill Cassidy (R-LA) and Joe Manchin (D-WV).
Thursday, Cassidy, the ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, said that he had notified the NLRB that its issuance of the rule had not complied with the Congressional Review Act’s 60-day threshold rule. The Government Accountability Office had determined that the final rule did not have a required 60-day delay in its initial effective date, he said.
