On September 14, 2016 the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief in the D.C. Circuit expressing support for the National Labor Relations Board’s (“NLRB”) loosened standard of a joint employer. Under this loosened standard, a joint-employer relationship can exist if an employer exerted “indirect control” over the terms and conditions of employment. The NLRB’s previous joint-employer standard required a business to have “direct and immediate” control over the terms and conditions of employment. However, as explained previously in HR Legalist, this standard was expanded in Browning-Ferris when the NLRB concluded that BFI and a staffing agency were joint employers of workers at a BFI-owned recycling facility in Milpitas, California. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
BFI subsequently appealed this decision, filing a brief in June criticizing the NLRB’s loosened standard. In its amicus brief in support of the NLRB, the EEOC stated the definitions of employer under Title VII and the National Labor Relations Act (“NLRA”) are virtually identical. Accordingly, “the NLRB acted appropriately in bringing its joint-employer standard in line with the EEOC’s.” Admitting that its “flexible” joint-employer test like the NLRB’s contained more uncertainties than the previous standard, the EEOC stated “[u]ncertainty, however, is no basis for rejecting a rule that is consistent with statutory language, common law and legislative purpose.”
In light of Browning-Ferris and this most recent EEOC filing, one’s status as a potential joint-employer continues to be unclear. As always, HR legalist urges employers to consult legal counsel if you have any questions about how these recent developments may impact your business.
*The author would like to acknowledge Malcolm Ingram for providing assistance with the research and writing of this article.