What Is the Full Timeline Behind the Joint Employer Standard’s Instability?

Since 2015, the joint employer standard under the National Labor Relations Act (NLRA) has shifted repeatedly between the longstanding test centered on direct and immediate control and broader approaches that consider indirect control. Under the Fair Labor Standards Act, the Department of Labor separately issued a joint employer rule in 2020, rescinded it in 2021 and proposed a new rule in April 2026.

These changes, driven by National Labor Relations Board (NLRB) decisions, rulemakings, and court challenges, have created ongoing uncertainty for franchisors and franchisees about when they may be treated as responsible for the same employees. The timeline below outlines the major developments under the NLRA.

NLRA joint employer standard: timeline of major developments
Period Development
Before 2015 Under the NLRA, the established joint employer standard focused on whether a business possessed and exercised direct and immediate control over essential terms and conditions of employment.
2015 In Browning-Ferris, the National Labor Relations Board expanded the joint employer test to include indirect control. The decision broadened the circumstances in which separate businesses could be treated as responsible for the same employees.
2017 In Hy-Brand, the NLRB returned to the earlier direct and immediate control approach. The decision was later vacated on procedural grounds, leaving the broader Browning-Ferris standard in place.
2020 The NLRB finalized a rule that restored the substantial direct and immediate control standard for determining joint employer status. The rule aligned with the traditional approach that governed before 2015.
2021 The Service Employees International Union (SEIU) challenged the NLRB’s 2020 joint employer rule. The litigation was stayed, meaning the 2020 rule remained in effect while the challenge was paused.
2023 The NLRB issued a final rule that expanded the circumstances under which businesses could be deemed joint employers, including on the basis of indirect or reserved control.
2024 A federal court vacated the NLRB’s 2023 joint employer rule before it could take effect. The decision left the 2020 rule in place, but did not permanently resolve the legal uncertainty surrounding the standard.
2025 The challenge to the NLRB’s 2020 rule was revived, creating the prospect of further litigation and another potential shift in the joint employer standard.

The American Franchise Act would establish a statutory standard for franchisor and franchisee joint employer determinations that aligns with historical precedent, rather than leave the issue to repeated regulatory changes and court challenges.

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