NACS Files Comments on Joint Employer Rule

The rule is an “overly broad, vague, arbitrary and capricious expansion” of the current regulations.

December 08, 2022

ALEXANDRIA, Va.—NACS has filed comments on behalf of the industry related to the National Labor Relations Board’s (NLRB) September proposal to rescind existing joint employer regulations and replace them with a dramatically expanded version. 

The new proposed rule would make it much easier for one company to be deemed to jointly employ another company’s worker(s). While the focus of the new rule is ostensibly to target the franchisor-franchisee relationship, it is too broad and could potentially place many convenience retailers at risk of being deemed to jointly employ workers who may be employed by suppliers or other service providers. 

In its comments, NACS writes: “The Board claims the purpose of the Proposed Rule is to ‘explicitly ground the joint-employer standard in common-law agency principles and provide relevant guidance to parties covered by the Act regarding their rights and responsibilities under the Act,’, but it accomplishes neither of these goals. Instead, the Proposed Rule is an overly broad, vague, arbitrary, and capricious expansion of the current joint employer rule. Specifically, NACS takes issue with the Proposed Rule’s determinative ‘indirect and reserved forms of control” standard and an open-ended and non-exhaustive definition of employees’ “essential terms and conditions of employment.’”

The NACS comments focus on five different areas.

  1. That the indirect control standard which would be established in the proposed rule violates both common law and D.C. Circuit Court Ruling.
  2. That the non-exhaustive list of essential terms and conditions of employment contained within makes the proposal “Impermissibly vague & overly board.”
  3. “Implementation of the proposal would have direct, substantial, and far-reaching, negative impacts” on the industry.
  4. That the rule is premature, and lacks “reasoned explanation and meaningful guidance” making it a violation of the Administrative Procedures Act.
  5. That the economic analysis performed by the Board on the rule is dramatically flawed.

The NLRB has received more than 11,000 individual comment submissions on the proposal, including dozens filed by convenience retailers directly. Under federal law the board must review and consider all of these submissions as they work toward issuing a new final rule. The timetable under which such a review and the drafting the final version will take place is unknown at this time.

NACS will keep the convenience and fuel retailing industry up to date on any further developments.

Jon Taets is the director of government relations. He can be reached at