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A real agency example: hours at two businesses

The Department of Labor’s Opinion Letter FLSA2025-05 considered a restaurant and members club with represented shared operations, managers and workers. On those supplied facts, it concluded the worker’s hours had to be combined and both employers were responsible for compliance with the Fair Labor Standards Act (FLSA), the federal wage-and-hour law.

The letter is limited to the facts supplied and is not a court judgment about every franchise. Its practical lesson is to examine shared hours and real operations, rather than stop at the two payroll names.

Sources: U.S. Department of Labor, Wage and Hour Division: Complete three-page letter, facts/analysis and reliance limitations

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.

Sources: National Labor Relations Board: Complete current § 103.40(a)–(f); targeted follow-up: Complete103.40(a)–(f) U.S. Department of Labor, Wage and Hour Division: Complete three-page letter, facts/analysis and reliance limitations Federal Trade Commission: section-436.1

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.

Sources: National Labor Relations Board: Complete current § 103.40(a)–(f); targeted follow-up: Complete103.40(a)–(f) National Labor Relations Board: Complete final action, current-status explanation, replacement text and footnotes U.S. District Court for the Eastern District of Texas; GovInfo: Document47 filedMarch 18,2024; ordered March8; caption and remedy/conclusion, pages1,29–31 U.S. Department of Labor, Wage and Hour Division: Current complete part status; targeted follow-up: Complete substantive part status U.S. Department of Labor, Wage and Hour Division: Action/summary; backgroundI.D,G–J; proposed-rule status Office of the Federal Register / eCFR: Complete 103.40(a)–(f) Office of the Federal Register / eCFR: Full operative Part 791 entry Office of the Federal Register: Complete single-result listing for 2026-07959 National Labor Relations Board: Page 1 opening holding and procedural-history scope National Labor Relations Board: Complete 2 pages, April 8, 2026; case 32–CA–160759; duty-versus-scope paragraphs

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

The source records distinguish access dates from substantive review dates. Updating an explanation does not itself recheck the law.

29 CFR § 103.40: current NLRA joint-employer text

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

Accessed: 2026-11-14T00:41:45.037718+00:00 · Meaning reviewed: 2026-11-14T00:50:01.831769+00:00 · Next review target: 2026-12-12

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.

Withdrawal of2023 joint-employer standard: final rule

National Labor Relations Board

Passage, dates and research notes

primary · Complete final action, current-status explanation, replacement text and footnotes

remains the operative rule

Accessed: 2026-11-13T01:09:11.020161+00:00 · Meaning reviewed: 2026-11-12 · Next review target: 2026-12-12

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.

Chamber of Commerce v. NLRB: March 8, 2024 opinion/order

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

Accessed: 2026-11-13T01:11:22.865508+00:00 · Meaning reviewed: 2026-11-12 · Next review target: 2026-12-12

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.

29 CFR Part 791: reserved current FLSA joint-employer part

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]

Accessed: 2026-11-14T00:41:45.268868+00:00 · Meaning reviewed: 2026-11-14T00:50:01.831769+00:00 · Next review target: 2026-12-12

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.

April 2026 proposed joint-employer rule: FLSA, FMLA and MSPA

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

Accessed: 2026-11-13T01:07:46.673969+00:00 · Meaning reviewed: 2026-11-12 · Next review target: 2026-12-12

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.

Opinion Letter FLSA2025-05: horizontal employment and combined hours

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

Accessed: 2026-11-13T01:13:59.147711+00:00 · Meaning reviewed: 2026-11-12 · Next review target: 2026-12-12

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.

16 CFR §436.1: Federal franchise definition

Federal Trade Commission

Passage, dates and research notes

primary · section-436.1

whatever it may be called

Accessed: 2026-11-12T20:51:48.875978+00:00 · Meaning reviewed: 2026-11-12 · Next review target: 2026-12-12

Current eCFR displayed through 2026-11-09; eCFR is authoritative but not the official legal edition.

Current NLRA joint-employer text,29 CFR103.40

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

Accessed: 2026-11-14T01:52:32.756283+00:00 · Meaning reviewed: 2026-11-14T02:06:27.224351+00:00 · Next review target: 2026-12-14

Entire current 103.40 read; compilation cites91 FR9708,27 February 2026. No actual relationship or prior-case retroactivity decided.

Current 29 CFRPart791 reserved

Office of the Federal Register / eCFR

Passage, dates and research notes

primary · Full operative Part 791 entry

PART 791 [RESERVED]

Accessed: 2026-11-14T01:52:32.755640+00:00 · Meaning reviewed: 2026-11-14T02:06:27.225139+00:00 · Next review target: 2026-12-14

Actual current entry read. Reserved text is not absence of FLSA joint-employer liability.

Federal Register current RIN 1235-AA48 document index

Office of the Federal Register

Passage, dates and research notes

primary · Complete single-result listing for 2026-07959

Proposed Rule

Accessed: 2026-11-14T01:51:51.563482+00:00 · Meaning reviewed: 2026-11-14T02:06:27.225672+00:00 · Next review target: 2026-12-14

Actual API response read; current named RIN publication is a proposal. No new effective FLSA rule inferred from a closed comment period.

Browning-Ferris,374 NLRB No.. 46: second supplemental decision23 February 2026

National Labor Relations Board

Passage, dates and research notes

primary · Page 1 opening holding and procedural-history scope

as law of the case only

Accessed: 2026-11-14T02:01:04.624910+00:00 · Meaning reviewed: 2026-11-14T02:06:27.225758+00:00 · Next review target: 2026-12-14

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.

Browning-Ferris, 374 NLRB No. 93 — order denying reconsideration

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

Accessed: 2026-11-14T10:22:46.643880+00:00 · Meaning reviewed: 2026-11-14T10:26:26.384421+00:00 · Next review target: 2026-12-14

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)
A brand control clause does not answer every joint-employer test Depends on the facts

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.

When to check: A brand control clause does not answer every joint-employer test. Source review: 2026-11-12.

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 reconsideration
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