NLRB Expands Definition of “Joint Employer;” AGC to Host Free Webinar on Implication for Construction Contractors Nov. 3
The National Labor Relations Board's (NLRB or Board) recent decision in the Browning-Ferris Industries California, Inc. case relaxes the standard for determining when two companies constitute "joint employers" under the National Labor Relations Act. On November 3, 2:00-3:15 p.m. EASTERN Time, AGC will host a free, members-only webinar featuring a presentation by attorney Larry Marquess of Littler Mendelson on the implications of the ruling for employers in the construction industry and how such employers can minimize the risk of being deemed a joint employer of workers employed by their subcontractors, staffing firms, and others. The presentation will be part of the AGC Open Shop Committee's Quarterly Web Meeting, which will also include a broader labor law and activities update. The event is open to all AGC members regardless of committee membership. Click here for event details and registration.
The question in the case was whether Browning-Ferris Industries of California (BFI) and a company it used to supply labor were joint employers of the supplied workers or whether the labor supplier was the sole employer during a Teamsters organizing drive to represent the workers. Companies that are joint employers may be held jointly responsible for any unfair labor practices and collective bargaining obligations related to the workers. The Board concluded that the two companies were indeed joint employers based on its findings of indirect and direct control that BFI possessed over essential terms and conditions of employment of the supplied workers as well as Browning-Ferris’s reserved authority to control such terms and conditions.As reported here, AGC submitted a joint amicus brief in the case with other employer groups last year. The brief urged the Board to maintain the then-current standard, under which separate entities would be considered joint employers only if they share direct control over, or co-determine, essential terms and conditions of employment. The brief also urged the Board to refrain from relaxing the standard to the point where indirect or potential control would be enough. Consistent with the present Board’s penchant for expanding employer liability, the Board changed the standard to require consideration of whether an employer has exercised indirect control over terms and conditions of employment through an intermediary, or has reserved the right to do so.
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