Other federal agencies likely to follow suit, say labor and employment experts
BY Doug Chartier
LAW WEEK COLORADO
For many companies, the use of staffing agencies, contractors and franchises forms a liability barrier between themselves and the employees those entities directly control. The National Labor Relations Board may have significantly weakened that barrier in a long-anticipated ruling.
In a 3-2 majority, the NLRB ruled Aug. 27 that Browning-Ferris Industries is a joint employer with staffing agency Leadpoint, as BFI possessed both direct and indirect control over the terms and conditions of the employees Leadpoint hired.
To determine that a joint employer relationship exists, the NLRB traditionally needed evidence that a company had “direct and immediate” control over the employees of the other.
However, in its 20-page opinion, the majority said that an entity can be a joint employer if it merely has the authority to control employees’ terms and conditions of employment — such as hiring, firing, supervision and discipline — even if it never acts upon that authority.