Wyatt Employment Law Report

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NLRB Adopts Broad Definition of Joint Employer

By Michelle D. Wyrick

The National Labor Relations Board’s (“NLRB’s”) revised joint-employer standard spells trouble for businesses that rely on temporary employees or contingent workers and businesses that use the franchisor-franchisee model. Citing the dramatic growth in contingent employment relationships, on August 21, 2015, in Browning-Ferris Industries of California, Inc., the NLRB abandoned its more limited joint-employer standard and adopted an expansive new standard designed to encourage collective bargaining. Under the NLRB’s old test, an entity could be found to be a joint employer only if it had the authority to control workers’ terms and conditions of employment and if it actually exercised direct and immediate control over the workers. Under the new test, an entity may be found to be a joint employer if it has the authority to control workers’ terms and conditions of employment, even if it never exercises that authority.

Applying its new test, the NLRB concluded that BFI Newby Island Recyclery (“BFI”) and Leadpoint Business Services (“Leadpoint”) were joint employers of the workers that Leadpoint supplied to BFI under a temporary labor services agreement. Under the temporary labor services agreement, Leadpoint recruited, interviewed, tested, and hired workers to perform work for BFI. In determining that BFI was a joint employer, the NLRB found it significant that Continue reading

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NLRB May Be Expanding Definition of Joint Employer

By Edwin S. Hopson

On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director’s decision in order to determine if the Board’s current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.

The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:

  1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
  2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?
  3. If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

The briefs may be filed on or before June 26, 2014.