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Problems with the New Test for Joint-Employer Status
This past summer, the National Labor Relations Board (NLRB) reversed over 30 years of precedent and adopted a new, more expansive and ambiguous standard for determining joint employer status. (See Molly Kaban, Raymond Lynch: The NLRB Joint Employers Ruling, Employment Law Strategist, November 2015, http://bit.ly/1TweWjY.) The new standard promises to entangle businesses with only tenuous links to another employer's workforce in a morass of collective-bargaining obligations and unfair labor practice liability for workforces over which they exercise no actual control.
The new test for joint-employer status articulated in Browning-Ferris Industries, 362 NLRB No. 186 (2015), “has dramatic implications for labor relations policy and its effect on the economy,” board members Miscimarra and Johnson wrote in a 28-page dissent, attacking the majority's logic and highlighting the problems the new standard is sure to create for employers and for the collective bargaining process itself. The dissent stated:
The majority's new test represents a major unexplained departure from precedent. This test promises to effect a sea change in labor relations and business relationships. Our colleagues presumably do not intend that every business relationship necessarily entails the joint employment of every entity's employees, but there is no limiting principle in their open-ended multifactor standard. It is an analytical grab bag from which any scrap of evidence regarding indirect control or incidental collaboration as to any aspect of work may suffice to prove that multiple entities ' whether they number two or two dozen ' “share or co-determine essential terms and conditions of employment.”
The New Joint Employer Standard
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