Prepare for NLRB’s new joint employer standard — They may be your employees after all!

Browning-Ferris Industries of California, Inc., et al, could provoke a test that sweeps most outsourcing arrangements into joint employment

The National Labor Relations Board (NLRB) is poised to make several decisions that could significantly affect your workplace. Its agenda is unabashedly activist. Its general counsel Richard Griffin, Jr. (who, interestingly, is the former general counsel of the International Union of Operating Engineers) has published advice memoranda that confirm the NLRB’s prosecutorial agenda, including:

  • Increasing scrutiny and involvement in the non-union workplace
  • Expediting the process for conducting union representation elections
  • Broadening a successor company’s obligation to bargain
  • Voiding arbitration agreements with class action prohibitions
  • Restricting confidentiality rules during employer investigations
  • Expanding rights to representation in the nonunion workplace
  • Controlling employer handbooks and policies concerning at-will employment, confidentiality, workplace decorum, social media, and employee use of employer email systems

This agenda is far too much for detailed evaluation in a single article. One pending case is both illustrative and hyper-significant because it affects every business that subcontracts or outsources any function: i.e., 100 percent of American business. Browning-Ferris Industries of California, Inc., et al., v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters will turn on the standard for determining joint-employer status — a standard that the NLRB has indicated that it wants to alter. The current standard was articulated in TLI, Inc., 271 NLRB 798 (1984), and Laerco Transportation, 269 NLRB 324 (1984). There, the NLRB held that legally separate entities are joint employer only when they actually share the ability to control or co-determine the essential terms and conditions of employment (i.e., hiring, firing, discipline, supervision, and direction of employees). Plus, the putative joint employers’ control over these employment matters must be direct and immediate.

Contributing Author

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Marilyn A. Pearson

Marilyn A. Pearson is a partner in the Chicago office of DLA Piper. Pearson advises and represents clients on a broad range of traditional labor...

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