Update on NLRB Joint Employer Proposal: SBA Virtual Roundtable and Grassroots Toolkit

On Oct. 6, the U.S. Small Business Administration’s Office of Advocacy announced that it is hosting a virtual roundtable to gather input from small businesses on the National Labor Relations Board’s joint employer proposed rule on Thursday, Oct. 20, from 1-2:30 p.m. ET. ABC plans to participate in the roundtable. ABC members interested in attending are encouraged to RSVP to [email protected] to receive participation details.

In addition, the ABC-led Coalition for a Democratic Workplace created a grassroots toolkit to tell the NLRB to abandon its radical joint employer standard. The toolkit provides an explanation of the rulemaking and a ready-to-send letter to the board explaining why the standard would be disastrous.

Further, on Sept. 29, ABC joined CDW and several other organizations in urging the NLRB to extend the comment period for the joint employer proposed rulemaking.

The letter to the NLRB requests an additional 60 days to Friday, Jan. 6, stating, “Given the expansive nature of the proposed standard and the complexity of issues relating the standard’s impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.”

The current deadline for the public to submit comments is Nov. 7. ABC plans to submit comments opposing the new proposal, and members are encouraged to do so as well. 


On Sept. 6, 2022, the NLRB announced a new joint employer proposal, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act.

ABC issued the following statement on the new proposed rule on Sept. 6:

“It is unfortunate that the Biden NLRB took an ax to the ABC-supported 2020 NLRB joint employer final rule, which provides clear criteria for companies to apply when determining status,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Today we see that the partisan NLRB proposes to greatly expand joint-employer liability under the NLRA, which will cause confusion and impose unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.”

As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

In 2019, ABC submitted comments in support of the Trump-era NLRB’s proposed rule, as did the ABC-led Coalition for a Democratic Workplace.

To learn more about the new NLRB proposal, read ABC general counsel Littler’s analysis, NLRB Proposes New Joint-Employer Standard That Would Dramatically Expand Scope of “Joint Employment” Under the National Labor Relations Act.