In August 2015, the National Labor Relations Board (“Board”) issued its decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), adopting a new standard for determining whether a company is a joint employer and therefore subject to all of an employer’s legal obligations under the NLRA with respect to the employees of another employer that provides it with services, leased or temporary labor, or the like. Since then, there have been many dire predictions as to how this new test would result in finding businesses to be joint employers of the employees of those they do business with, whether suppliers of temporary labor, franchisees, or a wide range of other circumstances. The latest permutation involves claims that a business that maintains a corporate social responsibility (“CSR”) policy intended to ensure that its suppliers and business affiliates comply with applicable laws and treat their employees fairly is, by virtue of such a policy, a joint employer of the supplier’s employees.

Under the new test that the Board adopted in Browning-Ferris Industries (“BFI”), what matters is whether the purported joint employer possesses the authority to control the terms and conditions of employment, either directly or indirectly, of another employer’s employees. In other words, the actual or potential ability to exercise control, regardless of whether the company has, in fact, exercised such authority, is now the focus of the Board’s inquiry. As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.”

Not surprisingly, the Board’s decision in BFI has been appealed. An amicus brief supporting a challenge to the BFI decision recently filed on behalf of Microsoft illustrates that the Board’s new standard, if left undisturbed, is likely to have the unintended consequence of discouraging responsible companies from encouraging their suppliers to provide their employees with benefits in excess of the bare minimums required by law.

In BFI, the Board held that the NLRA imposes joint-employer obligations if (1) a common law employment relationship exists between the putative joint employer and another entity’s employees and (2) “the putative joint employer possesses sufficient control over the employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”

As this amicus brief points out, one potential consequence of the new joint-employer rule is to discourage companies from maintaining CSR policies to ensure that those companies they do business with, in the United States, follow responsible policies when it comes to the treatment of their own employees. Typically, CSR policies provide for a minimum set of standards that would-be suppliers and service providers are expected to follow. For example, in March 2015, Microsoft announced that it would do business with only those large suppliers that provided employees with at least 15 days of paid leave annually. Both President Obama and Secretary of Labor Perez praised Microsoft’s CSR policy and expressed the hope that other companies would follow suit.

After BFI was decided, however, a union representing the employees of one of its suppliers claimed that Microsoft was a joint employer of the supplier’s workers and therefore subject to the supplier’s obligations under the NLRA vis–à–vis the supplier’s workforce. When Microsoft disagreed and declined to participate in bargaining between the supplier and its employees’ union, the union filed an unfair labor practice charge against Microsoft claiming that the company was a joint employer of the supplier’s workers and accusing it of unlawfully refusing to bargain.

The amicus brief highlights the importance of the first element of the BFI test (i.e., only common law employers can be liable as joint employers) in constructing a workable definition of “joint employer.” Basing the existence of joint employer status simply on whether a company has “sufficient control . . . to permit meaningful collective bargaining” overlooks the fact that a wide variety of economic actors have substantial control over the terms and conditions of workers employed by others. A company is unlikely to adopt a CSR policy if it lacks the size and market power to encourage vendors to comply with that policy. Thus, CSR policies do not demonstrate control over labor relations but, rather, should be more properly thought of as eligibility criteria for suppliers to provide services and do business. As Microsoft points out in its brief, “such oversight and standard-setting is commonplace in a supplier contracting relationship and is not the type of control that can support a finding of joint employment.”         

Thus far, unions have had some success in organizing the employees of vendors, such as shuttle bus companies that provide services to technology companies. They have also had limited success organizing workers directly employed by technology companies. This presents a strategic challenge for unions as the direct employers of the employees they represent are often in commoditized businesses with comparatively low margins, unable to offer the pay and benefits provided to technology company employees. Unions therefore have a strong financial interest in blurring the distinction between customers and employers, in an effort to forge a strategy to force technology companies to the bargaining table and extract expensive concessions.