On May 12, 2014, the National Labor Relations Board (NLRB) invited interested amici to file briefs addressing joint-employment issues raised in Browning-Ferris Industries of California, Inc., et al., v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, Case No. 32-RC-109684. In that case, the NLRB is considering whether Browning-Ferris Industries (BFI) or its subcontractor FPR-II, LLC (Leadpoint), or both, employed certain workers at BFI's facility who sorted recyclable items for waste and cleaned the facility. Sanitary Truck Drivers and Helpers Local 350 (the Union) sought to represent employees at the facility and requested a ruling on whether the employees were jointly employed by BFI and Leadpoint.

Under the existing joint-employer standard articulated in TLI, Inc., 271 NLRB 798 (1984), the NLRB analyzes whether the alleged joint employers share the ability to control or co-determine the essential terms and conditions of employment. Essential terms and conditions of employment include hiring, firing, discipline, supervision, and direction of employees.Laerco Transportation, 269 NLRB 324 (1984). The putative joint employers' control over these employment matters must be direct and immediate. TLI, Inc.

In Browning-Ferris Industries, the Acting Regional Director concluded that BFI did not have control over the essential terms and conditions of the workers' employment. For example, BFI had no control over the workers' wages and benefits, it had no authority to control the recruitment, hiring, counseling, discipline, and termination of the workers, and it did not control or co-determine the workers' daily work. Therefore, the Acting Regional Director determined that Leadpoint was the sole employer of the workers and directed an election.

Following the Acting Regional Director's decision, the Union requested that the NLRB review the Acting Regional Director's decision, urging the NLRB to reconsider its existing joint employer standard.

NLRB Invites Amici to Address Whether it Should Adopt a New Joint-Employer Standard

Following its acceptance of the Union's Request for Review, the NLRB invited amici to address the following:

1. Under the NLRB's current joint-employer standard, is Leadpoint the sole employer of the petitioned-for employees?

2. Should the NLRB adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the NLRB's decision in this regard?

3. If the NLRB adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

Briefs are due by June 26, 2014.

What it Means: Implications and Recommendations

If the NLRB decides to change its existing joint-employer standard, a new standard would likely broaden the scope of its application, holding a greater number of employers liable for alleged unfair labor practices. Moreover, an expansion of the NLRB's joint-employer standard could impact how the issue is analyzed in other contexts, including wage and hour and discrimination cases.