The National Labor Relations Board (NLRB or the Board) released its rulemaking priorities for the coming months and put joint employer status under the National Labor Relations Act (NLRA) at the top of the list.
For several years, the Board’s standard for joint employers has been in flux. After many decades of following a single standard in evaluating the scope of joint employer liability, the NLRB adopted a controversial new standard in the 2015 decision Browning-Ferris Industries of California, Inc.
In that case, the Board held that even when two entities have never exercised joint control over the essential terms and conditions of employment, and even when any joint control is not “direct and immediate,” the two entities will still be joint employers based on the existence of “reserved” joint control or based on indirect control that is “limited and routine.” The Board found that Browning-Ferris, Inc. (BFI) had reserved joint control over workers because of the terms of the agreement with another company, Leadpoint. Although that agreement defined Leadpoint as the sole employer, it also required that all workers satisfy BFI screening processes (including drug testing), enabled BFI to recommend dismissal of any worker, required workers to comply with BFI’s safety policies, and reserved to BFI the right to approve the workers’ time records and wages.
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