NLRB changes standards for determining joint employer status

The National Labor Relations Board today adopted a new union-advocated standard that two separate entities are “joint employers” of the same employees if they have any degree of indirect or reserved control over those matters governing the essential terms and conditions of employment of the employees. The Board’s new standard would impose all duties and responsibilities under the National Labor Relations Act on both joint employers and enmesh separate businesses in bargaining relationships that only one of the employers actually controls. The AHA was one of 14 national associations that urged in a joint friend-of-the-court brief that the Board not change its long-established previous standards for joint-employer determination, under which two separate entities were joint employers only if they exerted direct and significant control over the same employees such that they “share or codetermine those matters governing the essential terms and conditions of employment.” Under the newly adopted standard, the Board will no longer require that a joint employer actually exercise the authority to control employees’ terms and conditions of employment; reserved authority – even if not exercised – will now be relevant to the joint-employment determination. The Board also will consider indirectly exercised control – such as through an intermediary – as establishing joint-employer status. The case is Browning-Ferris Industries of California and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters.