In August of this year, the National Labor Relations Board (NLRB) revised its joint-employer test, which has incited much debate from employers across the country. The newly developed test permits a worker to be considered an employee of both a temp agency and the company where the worker is placed, despite the fact that the worker’s supervisors lack the traditional requisite degree of control over the worker.
Last week, in Browning-Ferris Industries of California v. NLRB, et al.., the parties filed appellate briefs in the U.S. Court of Appeals for the District of Columbia on this issue. Browning-Ferris claims that although the NLRB characterizes its revision of the thirty-year old joint-employer standard as a minor change, the new test is a complete overhaul that leaves employers in the dark as to how or when workers can be considered their employees. Importantly, as Browning-Ferris points out, the new test requires no direct control over the worker whatsoever. Browning-Ferris also argues that the NLRB’s decision leaves no room for third-party arrangements, which the National Labor Relations Act (NLRA) specifically anticipated.
Not surprisingly, the NLRB disagrees, stating that the new test focuses on control or the right to control. The NLRB admits, however, that it restored indirect control to the joint-employer analysis. The EEOC supports the NLRB’s revised standard, while non-governmental entities, such as the U.S. Chamber of Commerce and the International Franchise Association, have asked for the reversal of the new standard.
Employers wishing to avoid joint-employer liability should follow this decision closely, as it may affirm the NLRB’s decision and amend a thirty-year old test. In the meantime, for tips on how to avoid joint-employer liability, see our previous blog posts on these topics here and here.