Whether the National Labor Relations Board’s recently articulated joint employer standard can withstand judicial scrutiny is about to be tested. Browning Ferris Industries of California has filed a petition for review (in the United States Court of Appeals for the District of Columbia Circuit) of the NLRB’s bargaining order, asking the Court to deny enforcement of the Board’s Order requiring the company to bargain with the union based on an election conducted pursuant to the agency’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). That decision significantly eased the requirements for showing joint employer status, and is often cited as allowing unions to leverage their bargaining power by requiring host employers to bargain with unions that have organized a staffing company’s employees who work on the staffing company’s premises.

Meanwhile, the Board is reviewing an NLRB regional director’s decision refusing to find a staffing agency was a joint employer with a host construction contractor in the wake of the Board’s decision in Browning-Ferris. Green JobWorks LLC/ACECO, LLC, is believed to be the first case post-Browning-Ferris to apply the new joint employer standard and the Board’s review is expected to provide greater guidance regarding its intended reach.

As we noted in our post, Union Seeks Labor Board Review of Regional Director’s Adverse Joint Employer Decision, the Regional Director for Region 5 (Baltimore) concluded that the union failed to establish “specific, detailed and relevant evidence” demonstrating a joint employment relationship comparable to BFI. The union then sought review of the decision.

The Board granted the union’s Request for Review, agreeing to revisit the application of Browning-Ferris in the construction industry setting. The parties recently filed their briefs. ACECO, the host contractor employer, argued the Regional Director correctly applied all of the criteria set forth in Browning-Ferris and properly concluded that the facts of this case are significantly different from the facts of BFI. In the alternative, ACECO argued that Browning-Ferris must be overruled as improperly decided.

Conversely, the union argued that the Regional Director’s decision was contrary to Browning-Ferris. Moreover, because the Regional Director ordered an election that named only Green JobWorks as the employer, the union argued it was unable to negotiate with ACECO, a party with material control over the discipline, discharge, transfer, layoff, recall, placement, wages, overtime pay, and even hiring of employees of Green JobWorks. The union concluded that unless the Board reverses the decision, Browning-Ferris will be undone and joint employer determinations “will continue to be based upon microscopic parsing of the degree and routineness of the control exercised or held by putative joint employers.”

A Board decision in Green JobWorks is not expected before fall. We will keep you apprised as the Board provides further guidance on this important issue.