NLRB's New 'Joint Employer' Standard: Seismic Impact For California Employers?

Yesterday, the National Labor Relations Board issued its much-anticipated decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). By a 3-2 vote, the Board announced a new standard to determine whether multiple entities are "joint employers" of a single workforce. The Board will now inquire whether there is a common-law employment relationship with the employees in question (including the "right to control" the employees). If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses enough control over the employees' essential terms and conditions of employment to permit "meaningful collective bargaining."

The Board majority wrote that it was "restating" its joint employer test. "Restate" here means to alter dramatically, as Browning-Ferris overturns decades of precedent. Gone is the requirement of "direct and immediate" control over working conditions, and not of a "limited and routine" nature. Now, indirect control and even the reserved...