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An outcome inspection is different from setting a worker’s shift
Identify who selects workers, sets pay and individual schedules, directs performance, disciplines and terminates. A check of the contracted service outcome and an instruction about a named worker’s shift should not both be labelled quality control. Mixed-purpose controls and actual practice matter; neither fact alone completes a legal test.
Franchise classification asks about brand, operating control or assistance and payments. It does not itself decide who has duties to workers.
Which federal law is being applied?
For federal labour-relations law, the National Labor Relations Act (NLRA), the reviewed February 2026 final action restores the 2020 text: the 2023 rule never took effect after court vacatur. Substantial direct and immediate control over one or more listed essential employment terms is central; indirect or unexercised reserved authority has the rule’s qualified supplementary role.
For federal wage-and-hour law (the FLSA), Part 791 is reserved, not a declaration that joint-employer liability disappeared. The Department of Labor’s April 2026 publication is a proposal, not an effective rule or franchise exemption. Governing court law and the actual employment facts remain relevant.
Older disputes can have their own court-directed history. In its 23 February 2026 Browning-Ferris remand decision, the National Labor Relations Board applied the clarified earlier standard only as the law governing that case and expressly said it did not apply to cases arising after the 2020 rule took effect. Do not lift that older dispute’s test into a new arrangement without checking which law and period are involved.
On April 8, 2026, the Board denied reconsideration. It distinguished whether Browning-Ferris had to negotiate with the workers’ union as a joint employer from which working conditions that duty covered. The case’s limited record did not settle the precise range of bargaining topics. This later order kept the case-specific result; it does not supply a general answer for a new arrangement.
Scope
- This makes no joint-employer finding or full governing-court, bargaining-unit or state-law determination. The named February and April 2026 Board orders are read within their stated case/time limits; this is not a complete current appellate-docket survey.
Next step
Check shared-worker hours and actual employment decisions before treating two payrolls as two independent wage obligations.
Sources & review notes
National Labor Relations Board
Passage, dates and research notes
primary · Complete current § 103.40(a)–(f); targeted follow-up: Complete103.40(a)–(f)
substantial direct and immediate control
Prior AI-assisted review scope (2026-11-12): Read complete current rule including eight essential terms and qualified role of indirect/reserved authority. eCFR cites February 27, 2026 restoration of2020 text. Applies to the NLRA inquiry, not a universal FLSA/tax/state test. Targeted follow-up at 2026-11-14T00:50:01.831769+00:00: Re-read complete codified text; substantial/direct/immediate and supplementary indirect/reserved control retained. No FLSA transposition. Follow-up read scope: Complete103.40(a)–(f). This follow-up does not assert a fresh complete review beyond that scope. The earlier reviewed range is preserved, with current form/CISA/docket limits unchanged unless expressly resolved above.
National Labor Relations Board
Passage, dates and research notes
primary · Complete final action, current-status explanation, replacement text and footnotes
remains the operative rule
Read complete substantive action. It states the 2023 rule never took effect after district vacatur, restores2020 text, and makes ministerial repeal/replacement effective immediately. Complete corresponding GovInfo PDF also obtained. No claim that vacatur extinguishes joint-employer liability.
U.S. District Court for the Eastern District of Texas; GovInfo
Passage, dates and research notes
primary · Document47 filedMarch 18,2024; ordered March8; caption and remedy/conclusion, pages1,29–31
vacating the 2023 Rule
Complete 31-page opinion/order obtained. Read relevant procedural/background and remedy/conclusion; do not substitute it for a complete later appellate docket. The document states a final judgment will issue vacating both removal/replacement provisions; the 2026 NLRB final rule independently confirms vacatur and current restoration. The order date differs from its filing header.
U.S. Department of Labor, Wage and Hour Division
Passage, dates and research notes
primary · Current complete part status; targeted follow-up: Complete substantive part status
PART 791 [RESERVED]
Prior AI-assisted review scope (2026-11-12): Read current reserved part and timeline. Reserved regulatory text is not absence of statutory joint-employer liability. April 2026 NPRM background, case law and actual2025 opinion supply separate context. Targeted follow-up at 2026-11-14T00:50:01.831769+00:00: Reserved text is not an absence-of-liability conclusion. Follow-up read scope: Complete substantive part status. This follow-up does not assert a fresh complete review beyond that scope. The earlier reviewed range is preserved, with current form/CISA/docket limits unchanged unless expressly resolved above.
U.S. Department of Labor, Wage and Hour Division
Passage, dates and research notes
primary · Action/summary; backgroundI.D,G–J; proposed-rule status
Comments must be received on or before June 22, 2026
Read scoped full published text: proposal status, distinct statutes,2020-rule litigation/rescission and appeal history, recent2025 opinion. The 2026 proposed four-factor/franchise examples are not represented as effective law. Corresponding official GovInfo PDF obtained. No comprehensive current circuit survey.
U.S. Department of Labor, Wage and Hour Division
Passage, dates and research notes
official-guidance · Complete three-page letter, facts/analysis and reliance limitations
all the hours that you work
Read actual letter. Agency concludes restaurant/members-club joint employment on represented common management/operations/staffing facts; combines hours and responsibility. It is expressly fact-specific and not a court judgment, finding about every brand network or universal entity-aggregation rule.
Federal Trade Commission
Passage, dates and research notes
primary · section-436.1
whatever it may be called
Current eCFR displayed through 2026-11-09; eCFR is authoritative but not the official legal edition.
Office of the Federal Register / eCFR
Passage, dates and research notes
primary · Complete 103.40(a)–(f)
must possess and exercise such substantial direct and immediate control
Entire current 103.40 read; compilation cites91 FR9708,27 February 2026. No actual relationship or prior-case retroactivity decided.
Office of the Federal Register / eCFR
Passage, dates and research notes
primary · Full operative Part 791 entry
PART 791 [RESERVED]
Actual current entry read. Reserved text is not absence of FLSA joint-employer liability.
Office of the Federal Register
Passage, dates and research notes
primary · Complete single-result listing for 2026-07959
Proposed Rule
Actual API response read; current named RIN publication is a proposal. No new effective FLSA rule inferred from a closed comment period.
National Labor Relations Board
Passage, dates and research notes
primary · Page 1 opening holding and procedural-history scope
as law of the case only
Actual official Board PDF downloaded. Read opening holding, relevant first-page temporal limitation and procedural history; not represented as a full19-page merits review or complete later judicial history. Case applies clarified prior standard only to this remanded dispute, expressly excluding cases arising after the 2020 rule effective date.
National Labor Relations Board
Passage, dates and research notes
primary · Complete 2 pages, April 8, 2026; case 32–CA–160759; duty-versus-scope paragraphs
the precise scope of Browning-Ferris’s bargaining obligation is not before the Board
Ordinary original HTTP GET returned 200 and application/octet-stream; PDF signature confirmed and both pages read with pdftotext. Web-reader MIME rejection did not mean the source was unavailable. Order expressly repeats law-of-the-case-only basis. Official docket row corroborates date but warns it does not reflect all actions. No complete subsequent appellate survey is claimed.
Detailed rule records (1)
Current NLRA § 103.40 requires its stated substantial direct/immediate-control analysis, with a qualified role for indirect/reserved control. Current FLSA Part 791 is reserved, not absence of liability; existing FLSA law and fact-specific agency guidance remain distinct from the April 2026 proposal.
29 CFR § 103.40: current NLRA joint-employer text Withdrawal of2023 joint-employer standard: final rule Chamber of Commerce v. NLRB: March 8, 2024 opinion/order 29 CFR Part 791: reserved current FLSA joint-employer part April 2026 proposed joint-employer rule: FLSA, FMLA and MSPA Opinion Letter FLSA2025-05: horizontal employment and combined hours 16 CFR §436.1: Federal franchise definition Current NLRA joint-employer text,29 CFR103.40 Current 29 CFRPart791 reserved Federal Register current RIN 1235-AA48 document index Browning-Ferris,374 NLRB No.. 46: second supplemental decision23 February 2026 Browning-Ferris, 374 NLRB No. 93 — order denying reconsiderationKeep this reading in your learning library.
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