Joint Employment and the Save Local Business Act

Legal Sidebari

Joint Employment and the Save Local
Business Act
November 15, 2017
Note: H.R. 3441, the Save Local Business Act, was passed by the House of Representatives on November
7, 2017 by a vote of 242-181.
Since it was decided in 2015, the National Labor Relations Board’s (NLRB’s) joint employer decision,
Browning-Ferris Industries of California, has been opposed by many in the business community. In
Browning-Ferris, a majority of the NLRB’s five members concluded that two or more entities would be
considered to be joint employers of a single work force if they are employers under common law and if
they share or codetermine matters governing the employees’ essential terms and conditions of
employment. Notably, the NLRB indicated that joint employer status could be established even if an
entity does not exercise direct control over employment matters, and its control is indirect or reserved by
contract.
Shortly after Browning-Ferris was issued, the U.S. Chamber of Commerce criticized the decision for
“expanding the universe of potential employers who can be targeted by the NLRB, unions, and [the]
plaintiffs’ bar.” Others praised the decision, however, for recognizing the increased use of staffing
companies and contingent workers, maintaining that the decision would provide employees with
opportunities to negotiate improved wages and working conditions. An effort to codify the joint employer
standard that was used by the NLRB prior to Browning-Ferris has now been introduced in Congress. H.R.
3441, the Save Local Business Act, would amend the National Labor Relations Act (NLRA), as well as
the Fair Labor Standards Act, to recognize an entity as a joint employer only if it “directly, actually, and
immediately . . . exercises significant control over the essential terms and conditions of employment[.]”
Sponsors of the bill contend that H.R. 3441 restores a “commonsense definition of what it means to be an
employer.”
The dispute in Browning-Ferris arose after a union petitioned to represent a group of workers, who were
placed in the company’s recycling facility by Leadpoint Business Services, a staffing company, pursuant
to a labor services agreement. Applying a joint-employer standard that had been in place since 1984, a
regional director with the NLRB concluded that Leadpoint and Browning-Ferris were not joint employers
of these workers. Under the old standard, the NLRB considered not only whether the alleged joint
employers shared the ability to control or codetermine essential terms and conditions of employment, but
also whether the companies actually exercised direct and immediate control over such employment
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matters. The regional director found that Browning-Ferris did not control the daily work performed by the
employees provided by Leadpoint, and that the staffing company was solely responsible for paying the
workers and providing their benefits. Ultimately, the regional director maintained that Browning-Ferris’s
control over the workers’ terms and conditions of employment was neither direct nor immediate.
On appeal, the NLRB majority described both the policies of the NLRA and the diversity of current
workplace arrangements before “restating” a reconsidered joint-employer standard. Acknowledging the
increased use of staffing arrangements and contingent workers, the majority observed: “This development
is reason enough to revisit the Board’s current joint-employer standard . . . If the current joint-employer
standard is narrower than statutorily necessary, and if joint-employer arrangements are increasing, the risk
is increased that the Board is failing in what the Supreme Court has described as the Board’s
‘responsibility to adapt the Act to the changing patterns of industrial life.’”
By eliminating the requirement that two or more employers must exercise direct and immediate control
over workers’ terms and conditions of employment to be deemed joint employers, the majority
maintained that it was returning to the traditional test used by the NLRB. The majority explained that the
emphasis on exercising direct and immediate control over employment matters actually evolved from
earlier NLRB decisions that recognized indirect and reserved control as indications of joint employer
status. Applying the “restated” joint-employer standard to the case at issue, the majority concluded that
Browning-Ferris and Leadpoint were joint employers of the relevant workers. While it acknowledged that
Browning-Ferris did not participate in Leadpoint’s day-to-day hiring practices, the majority noted that the
company retained the right to reject any worker under the labor services agreement. In addition, the
majority described other control over employment matters reserved for Browning-Ferris under the
agreement, such as the identification of processes that shaped day-to-day work.
The NLRB’s dissenting members criticized the majority opinion, contending that the standard “will
subject countless entities to unprecedented new joint-bargaining obligations that most do not even know
they have, to potential joint liability for unfair labor practices and breaches of collective-bargaining
agreements, and to economic protest activity . . .” The dissenters also indicated that the standard could be
particularly significant with regard to franchise arrangements. Under Browning-Ferris, it seems possible
that a franchisor could be deemed a joint employer of the workers employed by its franchisee even if it is
located far from the franchisee and maintains only limited contact with franchisee employees.
In fact, unfair labor practice cases that allege McDonald’s USA LLC is a joint employer of franchisee
employees are currently pending before the NLRB. If enacted, however, the Save Local Business Act
might forestall further consideration of the relationship between McDonald’s USA LLC and franchisee
employees. In the past, McDonald’s USA LLC has indicated that it does not have the authority to “direct
or co-determine the hiring, firing, wage rates, hours, or any other terms of employment of our franchisees’
employees[.]” Under the standard prescribed by the Save Local Business Act, it appears likely that
McDonald’s USA LLC – presuming its assertion is accurate – would not be considered a joint employer
of franchisee employees.
As Congress considers whether to act on the Save Local Business Act, another effort to reverse the joint
employer standard articulated in Browning-Ferris is occurring before the U.S. Court of Appeals for the
D.C. Circuit (D.C. Circuit). In March 2017, the D.C. Circuit heard oral argument in a challenge to the
NLRB’s 2015 decision, and a ruling in that case is forthcoming. If the D.C. Circuit reverses the NLRB’s
decision and the agency’s former joint employer standard is reinstated, the change proposed by the Save
Local Business Act, at least with regard to the NLRA, may not be needed. Nevertheless, the codification
of a joint employer standard that requires the direct, actual, and immediate exercise of significant control
over essential terms and conditions of employment would likely minimize the possibility of a future
NLRB adopting the kind of standard prescribed by Browning-Ferris.

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Author Information

Jon O. Shimabukuro

Legislative Attorney




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