On May 12, the National Labor Relations Board issued a notice and call for amicus briefs to address whether the Board should maintain its existing joint-employer standard or adopt a new one. Notice and Invitation to File Briefs, Browning-Ferris Indus. of California, Inc., Case 32-RC-109684 (May 12, 2014).
The joint-employer standard, which has been in existence for thirty years, is applied by the Board to determine whether employers that are legally separate should be considered joint employers under National Labor Relations Act. Under the Board’s current standard, for two employers to be held to be joint employers, they both must exercise a significant degree of control over the same employees’ essential terms and conditions of employment. See Laerco Transp. & Warehouse, 269 NLRB 324, 325 (1984). Where such control is found, the employees will be entitled to the protections provided under the National Labor Relations Act with respect to both employers.
In its invitation on May 12, the Board specifically asked for amicus briefs to be submitted to the Board by June 26, 2014, and to address one or more of the following questions:
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?
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?
Although a call for amici and a grant of review do not necessarily indicate a change in the law, it definitely paves the way for a reverse course by the Board. A broadening of the joint-employer standard is particularly likely given this Board’s recent history of seemingly looking for ways to expand its jurisdiction and relevance with an ever decreasing unionized workforce. A new—and likely easier to satisfy—joint-employer standard could subject employers to liability for unfair labor practices if they, for example, use a staffing agency, and identify a potentially significant population of employees for unions to pursue. A change to the Board’s joint-employer standard could also impact how the issue is analyzed in other employment contexts, as courts grapple with joint-employer liability in discrimination and wage-and-hour cases as well.