The past seven years have witnessed a deluge of policy mandates and enforcement directives from the Obama administration, and one of the worst offenders has been the National Labor Relations Board. When people think of this agency, it tends to be purely in the context of union issues. But the fact is, the NLRB has claimed jurisdiction over most businesses in the country. Take, for example, the agency’s new “joint employer” standard, which is being challenged right now in the U.S. Court of Appeals for the D.C. Circuit by members of the business community including the U.S. Chamber of Commerce.

Joint employer simply means that two separate businesses, such as a temp agency and a company that obtains workers from the agency, share legal responsibility for the same employee. For more than thirty years, the NLRB had used a fairly simple, bright line test for determining joint employer status. This was based on “direct and immediate” control. Under this standard, if two separate businesses had actual authority over terms and conditions of employment, such as pay, hiring, firing, discipline, and day-to-day supervision, they would be considered joint employers. If they didn’t, they weren’t.