The National Labor Relations Board has clarified the standard that should be used to determine joint-employer status under the National Labor Relations Act.  In a split decision involving Browning-Ferris Industries of California, Inc. (BFI), the Board clarified that joint employer status should be determined by considering whether two or more statutory employers "share or codetermine those matters governing the essential terms and conditions of employment."  Specifically, the Board will conclude that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will consider ? among other factors - whether an employer has exercised control over terms and conditions of employment indirectly, or whether it has reserved the authority to do so.

 

In applying this test to the facts in the instant case, the Board found that BFI was a joint employer with the company that supplied sorters, screen cleaners and housekeepers to BFI to perform various work functions for it.  When Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, sought to represent these workers, BFI took the position that it was not their employer.  An election was conducted on April 25, 2014, after which the ballots were impounded.  The NLRB Regional Director subsequently issued a decision finding that BFI was not a joint employer of the company that supplied the employees to BFI, and the Union sought further review, resulting in the instant holding reversing the Regional Director's decision.  In reaching its conclusion that BFI was a joint employer of the employees in the petitioned-for unit, the Board cited evidence showing that BFI had indirect and direct control over essential terms and conditions of employment of the supplied employees in addition to reserved authority to control these terms and conditions.  As such, the Board ordered that the ballots that were impounded on April 25, 2014 should be counted and the appropriate certification issued accordingly.  Browning-Ferris Industries of California, Inc.