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Problems with the New Test for Joint-Employer Status

By Matthew R. Porio
December 31, 2015

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:

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