On August 27, 2015, the National Labor Relations Board (NLRB) established a new standard to determine joint employer status under the National Labor Relations Act in Browning-Ferris Industries of California, Inc. The new standard substantially broadens what it means to be an employer, as it includes employers who only affect employment conditions indirectly, which will allow many more employers to fall in the joint employer category.
The Browning-Ferris decision overruled three cases, TLI, Laerco, and Airborne, that had set the previous standard for 30 years for what it means to be a joint employer. Under the previous standard, as set out by TLI, Laerco, and Airborne, it was determined that to be a joint employer the two entities must both determine matters regarding terms of employment. Specifically meaning that an employer had to be capable of certain things such as hiring, firing, disciplining, and supervising employees. Most importantly, the employer contact with the employee had to be direct.
The new standard for determining joint employer status looks at “whether a common-law employment relationship exists” and “whether the putative joint employer ‘possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful bargaining.'” A significant change is that employer contact with the employee can be indirect. Indirect control can be established through an intermediary or through contract saying the employer has the right to control the employee.
This new standard will allow more collective bargaining to occur. The decision will significantly impact businesses that use unconventional workforces, such as independent staffing services and subcontractors, because they now will open to liability for unfair labor practice, collective bargaining actions, and protests by employees due to their relationships with other companies. Additionally, employers with other relationships, such as contractor/contractee relationships and franchisor/franchisee relationships will also be affected by the new standard. They are all now open to potential liability as joint employers.
The employment lawyers at Fitapelli & Schaffer, LLP are strongly committed to protecting the rights of hard working employees. If you believe you have a potential claim against your employer, please call the employment lawyers at Fitapelli & Schaffer, LLP at (212) 300-0375 or visit our website at www.fslawfirm.com.