The NLRB’s Decision In Browning-Ferris Industries Of California (2015) One Month Later: Is The Sky Falling For Employers? -

The short answer to the question is, “Not yet.” Browning-Ferris Industries of California, Inc. expanded the definition of joint employer under the National Labor Relations Act (the “NLRA” or the “Act”) and is arguably the National Labor Relations Board’s (the “NLRB” or the “Board”) most significant decision of 2015. Many believe that Browning-Ferris will have far-reaching effects for years to come, including beyond the unionized workplace. This article discusses the decision, selected key potential implications for employers, and takes a brief look at the early fallout from Browning-Ferris.

The Decision -

On August 27, 2015, the three-member Democratic majority of the Board (in its own words) “modified the legal landscape for employers with respect to one federal statute, the National Labor Relations Act,” specifically regarding the application of the joint employer standard. The Board recognized that the standard itself remained the same, specifically that “the Board may find that two or more statutory employers are joint employers of the same statutory employees if they ‘share or codetermine those matters governing the essential terms and conditions of employment.’ The key inquiry in any joint employer analysis under the Act is the extent of the putative joint employer’s control over the terms and condition of employment of the employees in question.” But the Board announced a new application of that standard.