Published
February 27, 2026
On February 26, the National Labor Relations Board (NLRB) took action on a couple of issues that have been of concern for employers in recent years. In particular, the Board released a final rule dealing with the definition of joint employment, and it issued a case decision addressing the limitations of the NLRB’s remedies in cases involving employers’ refusal to bargain following a contested election.These two actions hopefully represent the more balanced approach to labor law that many have hoped to see for quite some time.
With respect to the first, the NLRB issued a rulemaking that withdraws the 2023 joint employer standard and formally reinstates the NLRB’s 2020 joint employer rule, which requires “substantial direct and immediate control” over essential terms of employment. The 2023 rule had lowered the bar for determining a joint employment relationship in one of several policy shifts on this issue dating to at least 2015, when the Obama-era Board issued a decision known as Browning-Ferris or BFI.
While this is an encouraging development, in reality it merely implements what the courts have already ordered courtesy of a 2024 decision that overturned the 2023 Biden rule.Meanwhile, the Service Employees International Union (SEIU) still has a challenge of its own to the 2020 rule in the DC circuit, and that litigation has yet to play out, so the final chapter is far from written on the joint employer issue.
On the same day, the NLRB also issued a noteworthy decision in Longmont United Hospital, in which the Board’s 2‑1 Republican majority rejected a Biden‑era effort to expand its remedial power by requiring employers to pay workers compensation for allegedly refusing to bargain with their union unlawfully.
More specifically, the majority declined to overturn the Board’s 1970 decision in Ex‑Cell‑O Corp., which limits available remedies in refusal‑to‑bargain cases when an employer challenges a union’s election victory. Under the Biden administration, then‑General Counsel Jennifer Abruzzo had pursued an effort to make it more costly for employers to challenge union victories rather than bargain. In their decision, the two Republican members reaffirmed that Ex‑Cell‑O remains the correct policy.
After waiting nearly a year for a Republican majority to restore a functioning quorum at the NLRB, these two actions signal a more balanced approach for employers appearing before the current Board, which is welcome news.
About the author
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
