On August 27, 2015, the National Labor Relations Board (Board) issued a split decision (3-2) that drastically changes the test for determining whether an entity is considered a “joint employer” for purposes of collective bargaining. Browning-Ferris Industries of California Inc., 362 NLRB No. 186.

Overturning prior precedent, the Board held that Browning-Ferris Industries (BFI) was a joint employer of cleaning, sorting, and housekeeping workers at its California facility, even though a subcontractor, Leadpoint, hired and supervised those employees. In doing so, the Board revised the test for determining whether a company is a “joint employer.” It set forth a new, two-part test that examines (1) whether a common law employment relationship exists with the employees at issue and (2) whether the putative joint employer possesses sufficient control over the employees’ essential terms and conditions of employment to permit meaningful collective bargaining.