Browning-Ferris Appeals NLRB Decision expanding joint Employer Standards

DOES JOINT EMPLOYER VIOLATE TAFT-HARTLEY?: The D.C. Circuit should reject the NLRB’s new joint employer standard because it runs afoul the 1947 Taft-Hartley amendments to the NLRA, the waste company Browning-Ferris argued Tuesday.

Browning-Ferris submitted its opening brief in its appeal of an August board decision that requires it to bargain with the Teamsters as joint employers alongside Leadpoint, a staffing company that supplied a Browning-Ferris facility with temporary workers. In issuing the decision, the board loosened the existing definition of joint employment by no longer requiring an employer to have “direct and immediate” control.

But wait! Taft-Hartley defines an employer as an entity with direct and immediate control, Browning-Ferris’ brief argued. “Joint employers” must therefore be held to the same standard, it reasoned.

“The board’s test provides that indirect control alone over such terms or even an unexercised potential right to control may be dispositive in establishing joint-employer status,” the brief said. “The new test also improperly treats the ‘limited and routine’ user oversight inherent in administering a service or contractor arrangement as a basis for a joint employer finding. And it confuses a client’s influence upon a service provider due to market forces, pricing limitations, and customer criteria (i.e., ‘economic realities’) with actual day-to-day control over the provider’s employees.”

Source: Politico.com