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Now that the National Labor Relations Board (the “Board”) has regained its necessary quorum<a href="#_ftn1" id="_ftnref1">[1]</a> and has a new General Counsel, employers should anticipate meaningful changes in how the National Labor Relations Act (“NLRA”) is enforced throughout 2026.

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Two early developments illustrate how the Board may shift its approach in enforcing the NLRA. First, the Board has formally reimplemented its 2020 joint‑employer regulation. Second, NLRB General Counsel, Crystal Carey, has instructed Regional Offices to deprioritize and resolve cases alleging mere maintenance of workplace rules under the Board’s 2023 Stericycle standard, signaling a lighter touch on policy‑only challenges.

In 2020, the Board promulgated a rule defining when two separate entities are joint employers under the NLRA. Under that regulation, an entity is a joint employer only if it possesses and exercises substantial direct and immediate control over one or more essential terms and conditions of employment, which the rule enumerates as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. The rule clarifies that indirect or reserved control, without substantial direct and immediate control, is insufficient for joint‑employer status.<a href="#_ftn2" id="_ftnref2">[2]</a>

By contrast, the Board’s 2023 rule (later stayed and then vacated by a federal court)<a href="#_ftn3" id="_ftnref3">[3]</a> would have recognized joint‑employer status where an entity had authority to control at least one essential term, whether that control was exercised and regardless of whether the control was direct or indirect.<a href="#_ftn4" id="_ftnref4">[4]</a>

<a>On February 26, 2026, the Board formally reimplemented the 2020 standard.</a><a href="#_ftn5" id="_ftnref5">[5]</a> Substantively, this means employers will continue to be assessed under the narrower 2020 framework, requiring substantial direct and immediate control over the enumerated essential terms, rather than the broader, vacated 2023 approach. Employers with franchise, staffing, or subcontracting relationships should review their agreements and on‑the‑ground practices with this standard in mind.

GC Guidance: Pullback from Stericycle‑Style Work‑Rule Cases

On February 27, 2026, the General Counsel issued a guidance memorandum directing Regions to stop pursuing work-rule cases that are based solely on the maintenance of a handbook policy, unless the rule is either (1) actually enforced or (2) facially and patently unlawful (e.g., an explicit prohibition on employees discussing wages).<a href="#_ftn6" id="_ftnref6">[6]</a> Under this directive, Regions are expected to move quickly toward settlement or withdrawal of these “maintenance-only” cases and should reserve litigation resources for situations where a rule has been applied in a way that interferes with Section 7 rights or where a rule is unlawful on its face.

The memo also reiterates that Regions should not routinely seek “enhanced remedies” (e.g., notice readings, apology letters, nationwide postings) and emphasizes that evidence requests should be targeted to the specific rule at issue, rather than demanding handbook overhaul. This marks a practical shift in enforcement priorities, directing more resources toward cases involving real-world consequences, not theoretical concerns.

Although the Board’s 2023 decision in Stericycle, Inc., which established a more stringent standard for evaluating workplace rules, remains good law,<a href="#_ftn7" id="_ftnref7">[7]</a> the General Counsel’s 2026 guidance substantially narrows when Regions will enforce it. In practice, employers should now expect the Board to intervene only if (1) an employee can show the rule was enforced to restrict protected activity, or (2) the rule is obviously unlawful on its face.

We expect additional movement in 2026 as the new Board quorum and General Counsel continue to refine priorities and precedents. For now, employers should (1) revisit multi‑entity arrangements under the reimplemented 2020 joint‑employer standard, and (2) use the GC’s 2026 guidance to inform handbook and policy strategies.

Please contact Kevin Terry, Kris Hanson, or any member of Michael Best’s Labor‑Management Relations team to discuss these developments and how they may affect your organization.

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<a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.michaelbest.com/insights/nlrb-quorum-restored-what-employers-need-to-know/">NLRB Quorum Restored: What Employers Need to Know</a>, Michael Best &amp; Friedrich LLP (Dec. 19, 2025).

<a href="#_ftnref2" id="_ftn2">[2]</a> See Joint Employer Status Under the NLRA, 85 Fed. Reg. 11,184 (Feb. 26, 2020) (final rule; effective Apr. 27, 2020).

<a href="#_ftnref3" id="_ftn3">[3]</a> Chamber of Commerce of U.S. v. NLRB, 723 F. Supp. 3d 498 (E.D. Tex. 2024)

<a href="#_ftnref4" id="_ftn4">[4]</a> See Standard for Determining Joint‑Employer Status, 88 Fed. Reg. 73,946 (Oct. 27, 2023) (final rule); 88 Fed. Reg. 81,344 (Nov. 22, 2023) (delaying effective date).

<a href="#_ftnref5" id="_ftn5">[5]</a> Withdrawal of 2023 Standard for Determining Joint Employer Status, 91 Fed. Reg. 9707 (Feb. 27, 2026).

<a href="#_ftnref6" id="_ftn6">[6]</a> NLRB Gen. Counsel Memo., GC 26-03, Case Handling Guidance (Feb. 27, 2026).

<a href="#_ftnref7" id="_ftn7">[7]</a> Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023).

Business professionals walking through a modern office space and ascending stairs during a busy workday.

Business professionals walking through a modern office space and ascending stairs.

NLRB 2026 Outlook: Return to the 2020 Joint‑Employer Rule and a Shift Away from Work‑Rule Enforcement

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