In a new regulatory rule, the NLRB has returned to a broad joint employer rule, which narrows the availability of contractor usage. The new rule no longer requires that a putative joint employer actually exercise control over the workers, now it returns to finding adequate potential, even never exercised control, based arguably even solely on a theoretical reading of the parties’ contracts and perhaps broader. The Board illustrates this in its new rule by expressly stating both “reserved” and “indirect” control will be sufficient to establish a joint employer relationship. The new rule looks to seven “essential” fact issues to be considered in the context of the putative joint employer’s involvement in the worker’s wages, hours and working conditions:

1. wages, benefits, and other compensation;
2. hours of work and scheduling;
3. the assignment of duties to be performed;
4. the supervision of the performance of duties;
5. work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
6. the tenure of employment, including hiring and discharge; and
7. working conditions related to the safety and health of employees.