June 6, 2023

Volume XIII, Number 157


June 06, 2023

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June 04, 2023

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NLRB Joint Employer Case Will Be Heard by Federal Appeals Court on March 9

Oral argument on Browning-Ferris Industries of California, Inc.’s appeal seeking to overturn the National Labor Relations Board’s  landmark joint employer decision, Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), has been scheduled for March 9, 2017, by the U.S.  Court of Appeals for the District of Columbia Circuit.

The Browning-Ferris decision established a new, union-friendly standard for determining joint employer status under the NLRA. (For details, see Labor Board Sets New Standard for Determining Joint Employer Status.)

Under the Board’s former standard, a joint employer relationship existed only where “two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” In particular, an employer had to “meaningfully affect[] matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.” In Browning-Ferris, the Board transformed the joint employer standard into a test that, in relevant part, considers whether the potential joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful bargaining. “Control” under the new standard is defined much broader than under the old one; it can be direct, indirect, or even a reserved right, whether or not that right is ever exercised. Applying this new standard, the Board found BFI was a joint employer with temporary service agency Leadpointe of the employees BFI subcontracted for, and certified the Teamsters as the bargaining representative of the petitioned-for unit.

The composition of the Court of Appeals three-judge panel will be announced days prior to the date of oral argument, by February 9, 2017, on the Court’s website (www.cadc.uscourts.gov). Stay tuned for further updates on the NLRB’s new joint employer standard and for an analysis of the oral argument.

Jackson Lewis P.C. © 2023National Law Review, Volume VII, Number 24

About this Author

Kathleen M. Tinnerello, Jackson Lewis, Cleveland, Labor Rights Lawyer, Employment Litigation Attorney

Kathleen M. Tinnerello is an Associate in the Cleveland, Ohio office of Jackson Lewis P.C. Ms. Tinnerello brings a common sense approach to the practice of law, giving thoughtful advice that promotes her clients’ goals and protects her clients’ interests.

Serving as a counselor and advocate for employers in the private and public sector, Ms. Tinnerello represents employers in state and federal courts, as well as before the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the National Labor Relations Board, the State Employment...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...