Condo Media - November 2016 - 40

UNDER CONTROL
The ruling, in
Browning Ferris
Industries of California, 362 NLRB No. 186
(2015) revised and expanded
the decades-old criteria for
determining whether two entities
are "joint employers" and thus jointly
liable for complaints filed by employees. The joint employer standard was
established in a 1965 case (Greyhound
Corp.), involving a bus company that
had contracted with a maintenance
company to service its terminals.
Relying on common law principles, the
NLRB found both employers in this
case to be joint employers of certain
employees because they both shared
sufficient control over the
essential terms and conditions of employment.
This original standard focused essentially on the right employers have to control the work of employees and the terms
and conditions of their employment. The
NLRB also held that simply reserving the
right to control was enough to create a
joint employer relationship, regardless of
whether the employer actually exercised
that right.
The Third Circuit endorsed this standard in a 1982 case (Browning-Ferris Industries of Pennsylvania, Inc.), finding that:
"The basis of the [ joint employer] finding
is simply that one employer while contracting in good faith with an otherwise
independent company, has retained for
itself sufficient control of the terms and
conditions of employment of the employees who are employed by the other
employer ... Thus, the 'joint employer'
concept recognizes that the business
entities involved are in fact separate
but that they share or codetermine
those matters governing the essential
terms and conditions of employment."
Over the next 30 years, the NLRB
narrowed the joint employer standard
the Third Circuit had embraced, most
significantly by eliminating the reserved right to control as a determining
factor. The NLRB's revised standard
considered whether the employer had
a right to control, whether it actually

40

CONDOMEDIA

exercised control and did so immediately and
not in a limited and routine manner.
In its decision (Browning-Ferris), the NLRB
attempts to clarify the analysis that should
be used to determine joint employer status
by returning to its original standard. But
the decision also expands the criteria to
be used in the analysis. According to the
NLRB: "two or more entities are joint employers of a single work force if they are
both employers within the meaning of
the common law, and if they share
or codetermine those matters
governing the essential
terms and conditions of
employment. In evaluating the allocation and
exercise of control in the
workplace, we will consider
the various ways in which joint
employers may 'share' control
over terms and conditions of
employment or 'codetermine'
them, as the Board and the
courts have done in the past."
The NLRB decision further
specifies that "essential terms of
employment" are not limited to the
hiring, firing, discipline, supervision, and direction of employees.
Other factors, including whether
employers dictate the number of
workers to be supplied, scheduling,
seniority and overtime, assign work
and determine the manner and method
of work performance, should also be
considered in determining whether an
entity has control or a reserved right to
control mandatory terms and condiThe NLRB ruling has
tions of employment.
Additionally and significantly, the
made it very difficult
Ferris ruling makes two crucial changes
to avoid a joint emin the joint employer analysis that has
ployer relationship
evolved over the past 30 years. First,
the board said it will no longer require
when both the condo
that joint employers both possess and
association and its
exercise direct authority over employees. "Reserved authority to control the
management comterms and conditions of employment,
pany have direct and
even if not exercised, is clearly relevant
even indirect control
to the joint employment inquiry," the
board said.
over employees.
Second, the board said that as actual
control and reserved control are now
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