Dive Brief:
- The National Labor Relations Board determined that Browning-Ferris Industries is a joint employer Monday, reaffirming its August 2015 opinion following a decade of litigation and reversals of the decision.
- Acknowledging the U.S. Court of Appeals for the District of Columbia Circuit’s 2022 order sending the case back to the board, the NLRB held that in the case of Browning-Ferris, “an employer shares or codetermines those matters governing essential terms and conditions of employment if the employer possesses or reserves the authority to control (whether directly, indirectly, or both), or exercises the power to control (whether directly, indirectly, or both), one or more of the employees’ essential terms and conditions of employment.”
- The NLRB clarified that its decision applies “solely as law of the case and only insofar as it was affirmed by the court of appeals,” noting that “the principles stated here have no application to cases arising after the effective date of the Board’s 2020 joint employer rule.”
Dive Insight:
The NLRB’s approach to joint employment has been the subject of a tug-of-war going back over a decade.
In 2015, the board considered whether Browning-Ferris Industries Newby Island Recyclery, a California recycling facility, jointly employed sorters, screeners and housekeepers provided through a contract with Leadpoint Business Services. In 2013, a union representing BFI workers sought to represent the Leadpoint workers, arguing BFI and Leadpoint were joint employers.
An acting regional director initially disagreed, but the board reversed the decision in 2015 and announced a restated standard for determining joint employer status. The board certified the union following a vote among Leadpoint workers, but BFI refused to bargain with the union and eventually petitioned the D.C. Circuit to review the decision.
The court “largely upheld” the standard in 2018, but sent the decision back to the board for further clarification. In 2020, the board, operating under the first Trump administration, reversed course, finding BFI was not a joint employer of Leadpoint workers. The D.C. Circuit rejected the board’s revised position and remanded the case back to the board for a second time — resulting in Monday’s decision.
Importantly, in complying with the court’s decision, the NLRB did not offer a new or revived interpretation of the joint employer standard; it merely deferred to the court’s instructions.
“We continue to hold that two or more employers of the same particular employees are joint employers of those employees if they share or codetermine those matters governing essential terms and conditions of employment,” the board wrote. But, “having accepted the court’s 2018 and 2022 remands, the court’s decisions are law of the case.”
Republic Services, the parent company of Browning-Ferris Industries of California, declined to comment on the case.
The current interpretation of joint employment relies on the 2020 standard adopted during the Trump administration, under which an entity may be considered a joint employer of a separate employer’s employees only if it possesses and exercises substantial direct and immediate control over the employees’ essential terms of employment.
During the Biden administration, the NLRB made a push to return to the Browning-Ferris interpretation — expanding the joint employer definition to include those that have “indirect control” over workers — but the rule was vacated just days before it would have taken effect in March 2024.
