Browning-Ferris Industries of California

Case Updates

In a 3-2 decision, the National Labor Relations Board revised the standard for determining whether to consider multiple employers to be “joint employers” of a single workforce. Under the new standard, two or more entities are joint employers of a single workforce if they are both employers under the common law, and if they share or “codetermine” essential terms and conditions of employment.

In response to the ruling, the Chamber stated that the decision upends 30 years of precedent which had considered multiple employers to be “joint employers” only if both entities exercise direct and immediate control, over the same workers, regarding the terms and conditions of employment.

In it's brief, the Chamber asked the National Labor Relations Board to adhere to the current standard for determining the joint-employer status. The Chamber argues that the Board's current joint-employer doctrine comports with the law of and should not be altered unless it is through new legislation. The Board has recognized for more than 30 years the validity of the well-established joint employer standard. The brief points out that both Congress and the Supreme Court have directed the Board to use the common law of agency, and not other standards to decide joint-employer status under the NLRA. The board should reject the petitioners request to adopt the broader economic realities test applied to determine joint-employer status under the Fair Labor Standards Act and state labor laws.

Marshall B. Babson, David Ross, Camille Olson, Stuart Newman, and Gena Usenheimer of Seyfarth Shaw LLP represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center.