Hunton Employment & Labor Perspectives

A concerned business community has closely followed the NLRB’s shifting views on the concept of “joint employers” - separate companies that are deemed to be so interconnected that they should be treated as one for purposes of labor relations activity and unfair labor practice liability. In August of last year, the NLRB decision in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), put into place a broad new test that dramatically expands the definition of “joint employer.” Now, an entity will be found to be a joint employer if it exercises only indirect control over the employment terms and conditions of another company’s employees. Indeed, joint employer status can be established if a company simply possesses, but never exercises, the ability to control such terms.

Browning-Ferris has appealed the NLRB’s decision to the United States Court of Appeals for the District of Columbia Circuit, urging that court to reject the overly broad new test and return to the practical and logical “direct control” analysis. More than fifteen influential employer trade groups have rallied to support the company’s position through the filing of amicus briefs, along with the U.S. Chamber of Commerce, Microsoft Corporation, the Human Resources Policy Association, the Washington Legal Foundation, and the Governor of the State of Texas.

Hunton & Williams filed an amicus brief on behalf of the Associated Builders and Contractors, the Associated General Contractors of America, the American Hospital Association, the American Hotel and Lodging Association, the International Franchise Association, the National Association of Home Builders and the National Retail Federation, in which those groups sought to explain to the court the practical and economic consequences of the Browning-Ferris standard on American businesses.  A copy of that brief can be found here.