What Makes Parties Joint Employers? An Analysis of the National Labor Relations Board’s Redefining of the “Joint Employer” Standard and Its Potential Effect on the Labor Industry

Multiple cases decided before the National Labor Relations Board (“NLRB”) have continuously narrowed the scope of the joint employer doctrine. Most recently, in the case of Browning-Ferris Indus., 362 N.L.R.B. No. 186 (August 27, 2015), the NLRB overturned decades of precedent and adopted a much more expansive standard that reverts the doctrine back to its original understanding in 1965. Prior to this decision, the joint employer doctrine established a joint employer relationship when both entities had meaningful control over the terms and conditions of employment and actually exercised that authority. After Browning-Ferris, the new standard now only requires “indirect” control, regardless of actualization of that authority, over workers for businesses to be considered employers and be responsible for labor disputes and negotiations. The new standard has far reaching implications for the labor industry and affects the bargaining power and rights of entities all the way down the chain. The changes lead to increased liability for employees, greater bargaining power for unions