Joint‑employer fight returns
A new NLRB-era joint‑employer ruling is headed to federal court, reviving the question of when a company can be held responsible for workers employed through contractors. Analysts say the case revives legal uncertainty that could make informal control over schedules, discipline and site‑access legally meaningful, and the NLRB has separately asked a court to strike removal protections for Board members as the agency’s authority faces challenge. (news.lrionline.com (mondaq.com)
The fight over who counts as a boss is back in court, even after the National Labor Relations Board restored its narrower 2020 joint-employer rule in February 2026. (nlrb.gov) (hklaw.com) Under that 2020 standard, a company is usually a joint employer only if it both has and uses “substantial direct and immediate control” over core job terms such as wages, hours, hiring, discharge, discipline, supervision, or direction. The Board formally put that rule back into the Code of Federal Regulations on February 25, 2026, after a Texas federal judge had already wiped out the broader 2023 version. (hklaw.com) (nlrb.gov) The 2023 rule would have swept more broadly. It said a company’s reserved authority or indirect influence over scheduling, discipline, assignments, work rules, or safety could count even if the company did not exercise that control day to day. (nlrb.gov 1) (nlrb.gov 2) The immediate court fight comes out of Google’s dispute with workers employed by Accenture Flex. In an April 2026 decision, the Board said Google had “possessed and exercised control over the labor relations policy of Accenture Flex” and therefore had to bargain with the Communications Workers of America-affiliated Alphabet Workers Union. (news.lrionline.com) Google says it does not control Accenture workers’ wages, scheduling, or benefits and has no bargaining duty. After the Board rejected that position, the company’s path to federal court runs through an unfair labor practice case tied to its refusal to bargain. (news.lrionline.com) That leaves the legal question narrower than the politics around it: the Board’s current rule is employer-friendlier than the 2023 version, but companies can still lose if the facts show real control over another firm’s workers. The case matters most for staffing, contracting, and franchise arrangements where one company sets rules and another signs the paychecks. (news.lrionline.com) (hklaw.com) The standard has swung repeatedly over the last decade. The Board’s 2015 Browning-Ferris approach treated indirect control as relevant, the 2020 Trump-era rule tightened the test, and the Biden-era Board tried to restore a broader rule in October 2023 before Judge J. Campbell Barker of the Eastern District of Texas vacated it on March 8, 2024. (hklaw.com) (nlrb.gov) A separate case could unsettle the rule again. The Service Employees International Union is challenging the 2020 standard in the United States Court of Appeals for the District of Columbia Circuit, arguing that the rule’s focus on actual exercise of control is too narrow. (hklaw.com) (foxrothschild.com) At the same time, the Board is defending its own power on a different front by asking a federal court on March 23, 2026 to sever statutory job protections for Board members and administrative law judges. That filing came after the Fifth Circuit, in August 2025, halted a Board case and said those removal protections likely violate the Constitution. (foxrothschild.com) (proskauer.com) So the rule on paper is the 2020 one, but the next answers will come from judges, not regulators. The question federal courts now face is whether “direct control” means only signed pay and firing authority, or also the practical power to shape schedules, discipline, and access at work. (nlrb.gov) (news.lrionline.com)
