The National Labor Relations Board (NLRB or “Board”) is the federal agency that oversees workplace labor issues. Like most administrative agencies, priorities and philosophy develop over time and with changes in administration, which can affect both employers and employees, especially in areas like union activity and workplace responsibilities. Recently, the Board has made several notable updates, and more may be on the way.
One key change, announced on February 26, 2026, reversed a Biden era regulation and involves how the NLRB determines when two businesses are considered “joint employers.” This situation often comes up when a company uses subcontractors or staffing agencies. The Board has returned to a narrower standard that focuses on actual hands-on control.
Under this approach, a business will only be considered a joint employer if it directly shares control over important aspects of a worker’s job – such as hiring, firing, setting pay, supervising work, or establishing schedules. It’s not enough for a company to have the ability to influence these things in theory; it must actively and meaningfully exercise that control. Occasional, indirect, or minor involvement – like setting general expectations or having limited oversight – does not meet the standard. This change generally reduces the likelihood that a company will be held responsible for workers employed by another business.
The Board has also addressed what happens when an employer chooses not to negotiate with a union while challenging whether the union was properly certified. In recent decisions, the NLRB confirmed that it will not require employers to pay additional compensation – sometimes referred to as “lost opportunity damages” – to employees for the time spent resolving that dispute. In other words, even if the union is ultimately upheld, employees will not receive extra payments for what they might have gained during the delay in negotiations.
These updates are a reminder that labor law is not static. Rules and interpretations can evolve, sometimes quickly, and those changes can have practical effects on workplace policies and responsibilities. Employers may want to review their relationships with contractors and their approach to union-related issues, and employees should stay informed about how these developments could affect their rights and expectations.