United States: NLRB Expands Concept Of Joint Employers

On August 27, 2015, the National Labor Relations Board ("NLRB") issued a decision that changed the way it approaches the question of whether two companies can be considered joint employers of the same group of employees for purposes of collective bargaining under the National Labor Relations Act ("NLRA"). The NLRB's decision in Browning-Ferris Industries of California, Inc. enlarges the joint-employer definition in a way that could include entities such as franchisors, parent companies, and businesses that utilize temporary workers or subcontractors.

For decades, the NLRB required multiple entities to both possess and exercise direct and immediate control over a group of workers to be considered joint employers of those workers. However, the NLRB's new position is that a company need not actually exercise control over workers to be considered a joint employer. Instead, it need only reserve the authority to control them, even if that authority is never exercised. Additionally, the NLRB stated that "control exercised indirectly – such as through an intermediary – may establish joint-employer status."

The NLRB's Decision in Browning-Ferris Industries of California, Inc.

The Browning-Ferris decision involved a company, Browning-Ferris Industries of California, Inc. ("BFI"), that used the services of workers provided by a professional services company called Leadpoint Business Services in running its business. The workers were hired and directly supervised by Leadpoint. However, the staffing agreement gave BFI certain control over which individuals could be hired, and BFI managers did oversee the work performed by the workers supplied by Leadpoint. BFI also controlled certain aspects of operations that affected the workers' terms and conditions of employment, including the timing of shifts and breaks.

A union seeking to represent the workers supplied by Leadpoint to BFI asked the NLRB to reconsider the standard it had historically applied to analyze joint-employer status and recognize BFI and Leadpoint as the joint employers of the workers in question. Upon reconsideration, the NLRB adopted the revised, broader standard described above, reasoning that "the diversity of workplace arrangements in today's economy has significantly expanded" and that a revised standard was necessary "to better effectuate the purposes of the Act in the current economic landscape."

The revised standard announced by the NLRB allowed it to rely on BFI's indirect control over the employment conditions of workers supplied by Leadpoint. For example, the NLRB considered the fact that BFI communicated working standards and directives to Leadpoint (rather than directly to workers supplied by Leadpoint) in concluding that BFI was a joint employer. In addition, the NLRB analyzed the contracts between BFI and Leadpoint and considered the authority BFI had to control the conditions of workers supplied by Leadpoint, regardless of whether BFI actually exercised that authority.

As a result of its new approach, the NLRB found that BFI had the authority to exercise enough direct and indirect control over workers supplied by Leadpoint to be a joint employer for collective bargaining purposes. Therefore, if the union that initiated this case is ultimately found to represent a majority of the Leadpoint-supplied workers at BFI, both BFI and Leadpoint would be obligated to bargain with the union over the terms and conditions of employment for those workers.

Practical Implications

While BFI may appeal the NLRB's decision in federal court and the ultimate issue may still depend on the outcome of such an appeal, the NLRB's decision in Browning-Ferris Industries of California, Inc. represents a significant departure from the previous standard for determining joint-employer status. If the NLRB's decision holds, that agency may, depending on the particular facts, find entities such as franchisors and companies that use subcontractors or temporary employees to be in a joint-employer relationship, potentially making it easier for workers to organize and requiring those entities to bargain with respect to workers who were previously not considered their employees. Although the Browning-Ferris decision arose in the context of a union-representation case, the joint-employer standard announced in the decision could also be applied in the context of an unfair labor practice case. This would mean that, in certain circumstances, entities such as franchisors and companies using subcontractors or temporary workers could be held responsible for ensuring that jointly employed workers are not denied rights and protections afforded by the NLRA, such as the right to discuss working conditions. Franchisors should review their agreements with franchisees to determine the extent to which they have authority to control indirectly the working conditions of franchisee employees, even if they do not exercise that authority. Similarly, companies should review subcontractor agreements and agreements with staffing agencies forcomparable issues.

Kilpatrick Townsend's Labor and Employment attorneys will continue to monitor these issues and keep you informed of significant developments as they occur. In the meantime, feel free to contact our attorneys if you have any questions about this topic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Russell A. Jones
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.