We have written previously about the National Labor Relation Board’s 3-2 decision in Browning-Ferris of California, Inc., 362 NLRB No. 186 (August 27, 2015), increasing the likelihood the Board may find two employers to be “joint employers,” and thereby share many collective bargaining responsibilities as well as liability for each other’s violations of the National Labor Relations Act. See “Labor Board Sets New Standard for Determining Joint Employer Status” (August 25, 2015).

Among the circumstances the NLRB in Browning-Ferris said contributed to a joint employer finding were those pertaining to drug and alcohol testing. The contracting firm (Leadpoint) was required by its agreement with Browning-Ferris (BFI), the host employer, to ensure that all employees referred to BFI passed a five-panel urinalysis drug screen or similar test as agreed to in writing with BFI. Leadpoint was not allowed to refer workers who did not pass the test. Furthermore, BFI could request written certification of such test completion. Even after an employee was referred to BFI, Leadpoint was responsible for ensuring the employee remained free from the effects of alcohol and drug use and in condition to perform his job duties for BFI. The drug tests were administered through the Leadpoint HR department.

For more on this aspect of Browning-Ferris, click here.