On October 27, 2023, the Board published a final rule (2023 Rule) that rescinded and replaced a prior rule regarding the standard for determining joint employer status under the National Labor Relations Act. On March 8, 2024, the U.S. District Court for the Eastern District of Texas issued an order vacating the 2023 Rule. The Board is therefore revising its rules and regulations to replace the vacated regulatory text with the previous version of its rules that remain in effect due to the vacatur.
DATES:
This rule is effective February 27, 2026.
FOR FURTHER INFORMATION CONTACT:
Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half St. SE, Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free number) or 1-844-762-NLRB (6572) (this is a toll-free number). Hearing impaired callers who wish to speak to an NLRB representative should contact T-Mobile Relay Conference Captioning by visiting its website at https://www.tmobileaccess.com/federal, and submitting a form asking its Communications Assistant to call our toll free number at 1-844-762-NLRB (6572).
SUPPLEMENTARY INFORMATION:
On October 27, 2023, the National Labor Relations Board published a final rule intended to rescind and replace a 2020 rule governing joint employer status under the National Labor Relations Act. (88 FR 73946, Oct. 27, 2023). The 2023 Rule, titled “Standard for Determining Joint Employer Status,” established a new standard for determining whether two employers, as defined in the Act, are joint employers of particular employees within the meaning of the Act.
On November 19, 2023, a challenge to the 2023 Rule was filed in the U.S. District Court for the Eastern District of Texas. Chamber of Commerce v. NLRB, No. 6:23-CV-00553 (E.D. Tex.). On March 8, 2024, the district court vacated the rule. 723 F.Supp. 3d 498, 519 (E.D. Tex. 2024). As the 2023 Rule has never taken effect, the prior rule titled “Joint Employer Status Under the National Labor Relations Act,” which was promulgated on February 26, 2020 (2020 Rule), remains the operative rule for determining joint employer status. 85 FR 11184 (Feb. 26, 2020), codified at29 CFR 103.40. In accordance with the district court’s order, the Board hereby revises 29 CFR subpart D to replace the text of the vacated 2023 Rule with the text of the 2020 Rule, which remains in effect.[1]
Procedural and Other Matters
Section 553 of the Administrative Procedure Act provides that when an agency for good cause finds that notice and public comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.[2] The Board has determined that there is good cause for making today’s amendment to the 2023 Rule final without prior proposal and opportunity for comment. Because of the Court order vacating the 2023 Rule, the Board’s action is ministerial in nature. Accordingly, the Board for good cause finds that a notice and comment period is unnecessary.[3]
