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NLRB changes Joint-employer Standard: Possession of Authority to Control Essential Terms and Conditions of Employment Will Suffice

On August 27, 2015, the National Labor Relations Board (NLRB) undid over 30 years of joint employer jurisprudence with regard to the factors used to determine whether an entity is a joint-employer for collective bargaining purposes.

national labor relations board standards join employer

Since 1984, putative employers not only had to possess authority to control the terms and conditions of employment, but also had to exercise such control. In addition, putative employers had to exercise that control directly and immediately. In Browning-Ferris Industries of California, Inc., the NLRB reversed course. Now, the simple fact that a party possesses authority to control the terms and conditions of employment will suffice to establish joint-employer status, even where the right to control is exercised indirectly through an intermediary (such as a staffing agency).

In its decision, the NLRB claims that this ruling will provide “a clearer and stronger analytical foundation” to determine joint-employer status and will “best serve the Federal policy of ‘encouraging the practice and procedure of collective bargaining.’” Although the NLRB’s claim of clarity is unlikely to materialize (the two NLRB dissenters state as much), the Board has certainly made it easier for unions to seek joint-employers for their collective bargaining efforts.

So what is the takeaway for potential joint-employers, whether in the contractor/subcontractor, franchisor/franchisee or placement agency context? Parties to these contractual relationships must determine whether their need to retain control over certain terms and conditions of employment is worth the risk of a joint-employer determination. If no such need exists, the parties’ agreement should reflect that reality.

Stay tuned for additional developments regarding this issue…

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume V, Number 244


About this Author

Rufino Gaytán, Labor & Employment Attorney, Godfrey Kahn Law Firm "

Rufino Gaytán is an associate member of the firm's Labor & Employment Practice Group in Milwaukee. Rufino assists private and public employers in addressing general human resource issues and counsels employers in every aspect of labor and employment law. In particular, Rufino provides assistance with discrimination claims, wage and hour issues and drafting and enforcing restrictive covenant agreements. Rufino also represents clients before the Equal Employment Opportunity Commission and the Wisconsin Equal Rights Division.