Joint-Employer Status Under the NLRA after Browning-Ferris and Miller & Anderson

Description

In August 2015, the NLRB issued the highly-anticipated Browning-Ferris Industries of California Inc. case, greatly expanding the definition of joint-employer and upending its 30-year-old “joint-employer test.” The Browning-Ferris standard considers as potentially definitive the mere right the putative joint-employer has to control terms and conditions of employment, even if that right is never exercised. The new standard also changes the requirement that the putative joint-employer exercise “immediate and direct” control. Now, indirect control—such as that often exercised by one company over employment conditions of another’s workers—may, in itself, be sufficient to establish joint-employer status.

On July 11, 2016, the NLRB dramatically extended the potential impact of that new standard in deciding Miller & Anderson. In Miller & Anderson, the NLRB overturned another established precedent and resurrected a short-lived standard it adopted in 2000. Under Miller & Anderson, unions can organize in one bargaining unit the employees of two separate companies - a single employer and those it jointly employs with another – regardless of whether the two companies consent. Such “mixed units” are pervasive in today’s workplace, where employers routinely utilize temporary workers to supplement their regular workforces.

Across the spectrum of business relationships, counsel must be able to explain these new and evolving standards and help clients assess their risks of being deemed a joint-employer under the NLRA and other labor and employment laws. Employment counsel should encourage clients to revisit their existing practices and contracts, and assist them in developing options to best minimize the risks these two decisions create.

Listen as our experienced panel explains how counsel can structure and guide the implementation of agreements with subcontractors, staffing agencies and independent contractors to minimize the risks of joint-employer liability.