As expected, the National Labor Relations Board has adopted a new standard for determining whether two employers are joint employers for purposes of collective bargaining. Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015). In the 3-2 decision (Members Miscimarra and Johnson dissenting), the NLRB held:

We will no longer require that a joint employer not only possess the authority to control em­ployees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exer­cised, is clearly relevant to the joint-employment inquiry. . . . Nor will we require that, to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exer­cised indirectly—such as through an intermediary—may establish joint-employer status.

The Board held that the decision applies retroactively. We will provide a more extensive analysis of this landmark decision shortly.