Board Issues Decision in Browning-Ferris Industries
August 27, 2015 - NLRB
In a 3-2 decision involving
Browning-Ferris Industries of California, the National Labor Relations Board
refined its standard for determining joint-employer status. The revised standard
is designed gto better effectuate the purposes of the Act in the current
economic landscape.h With more than 2.87 million of the nationfs workers
employed through temporary agencies in August 2014, the Board held that its
previous joint employer standard has failed to keep pace with changes in the
workplace and economic circumstances.
In the decision, the Board applies long-established principles to
find that two or more entities are joint employers of a single workforce if (1)
they are both employers within the meaning of the common law; and (2) they
share or codetermine those matters governing the essential terms and conditions
of employment. In evaluating whether an employer possesses sufficient control
over employees to qualify as a joint employer, the Board will – among other
factors -- consider whether an employer has exercised control over terms and
conditions of employment indirectly through an intermediary, or whether it has
reserved the authority to do so.
In its decision, the Board found that BFI was a joint employer with
Leadpoint, the company that supplied employees to BFI to perform various work
functions for BFI, including cleaning and sorting of recycled products. In
finding that BFI was a joint employer with Leadpoint, the Board relied on
indirect and direct control that BFI possessed over essential terms and
conditions of employment of the employees supplied by Leadpoint as well as BFIfs
reserved authority to control such terms and conditions.
The Board ordered that within 14 days the ballots that were impounded
on April 25, 2014 shall be counted and the appropriate certification issued.
Board Chairman Mark Gaston Pearce was joined by Members Kent Y.
Hirozawa and Lauren McFerran in the majority opinion; Members Philip A.
Miscimarra and Harry I. Johnson III dissented.