Browning-Ferris Industries of California, Inc. (“BFI”) has asked the U.S. Court of Appeals for the D.C. Circuit to review the National Labor Relations Board’s January 20, 2016 decision that it, a waste management company, and Leadpoint Business Services, Inc. (“Leadpoint”), a staffing agency that provided employees to BFI, were joint employers of those employees under the National Labor Relations Act.
BFI’s appeal marks the next step in BFI’s attempt to overturn the NLRB’s new joint employer standard, which provoked alarm among many employers when it was issued on August 27, 2015.
As we previously reported, under the NLRB’s former standard, joint employment would be found only where “two separate entities share or codetermine those matters governing the essential terms and conditions of employment.” This typically meant that an alleged joint employer had to exert direct and immediate control over matters such as hiring, firing, discipline, supervision, and direction. Under the Board’s new joint employer standard, however, the control asserted by a putative joint employer no longer must be direct and immediate; indirect control, or a reserved right to control, whether or not exercised, is sufficient to support a finding of joint employment.
After the NLRB determined that BFI and Leadpoint were joint employers, an NLRB election was conducted to determine whether the employees would be represented by the Teamsters. The Teamsters prevailed and were certified as the exclusive bargaining representative of the employees. To test the Board’s determination, BFI refused to recognize and bargain with the union. The Teamsters filed an unfair labor practice charge, leading the Board to issue a unanimous decision on January 12, 2016 that, based on the certification, BFI violated the NLRA. It is this decision that BFI has appealed.
The appeal likely will not be decided until late this year or 2017. It appears the topic of joint employment will remain a critical labor issue in 2016.