In a 3-2 decision involving
Browning-Ferris Industries of California, the National Labor Relations Board
refined its standard for determining joint-employer status. The revised
standard is designed “to better effectuate the purposes of the Act in the
current economic landscape.” With more than 2.87 million of the nation’s
workers employed through temporary agencies in August 2014, the Board held that
its previous joint employer standard has failed to keep pace with changes in
the workplace and economic circumstances.
In the decision, the Board applies long-established
principles to find that two or more entities are joint employers of a single
workforce if (1) they are both employers within the meaning of the common
law; and (2) they share or codetermine those matters governing the
essential terms and conditions of employment. In evaluating whether an employer
possesses sufficient control over employees to qualify as a joint employer, the
Board will – among other factors -- consider whether an employer has exercised
control over terms and conditions of employment indirectly through an
intermediary, or whether it has reserved the authority to do so.
In its decision, the Board found that BFI was a joint
employer with Leadpoint, the company that supplied employees to BFI to perform
various work functions for BFI, including cleaning and sorting of recycled
products. In finding that BFI was a joint employer with Leadpoint, the Board
relied on indirect and direct control that BFI possessed over essential terms
and conditions of employment of the employees supplied by Leadpoint as well as
BFI’s reserved authority to control such terms and conditions.
The Board ordered that within 14 days the ballots that
were impounded on April 25, 2014 shall be counted and the appropriate
certification issued.
Board Chairman Mark Gaston Pearce was joined by Members
Kent Y. Hirozawa and Lauren McFerran in the majority opinion; Members Philip A.
Miscimarra and Harry I. Johnson III dissented.
Source: NLRB
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