Dive Brief:

• Confusion on the Browning-Ferris decision on joint employers continues. The Board instituted two tests: one specifically for NLRB tests and another for non-NLRB cases, meaning there could be “inconsistent findings” of joint-employer status depending on which agency decides the matter, Dustin Stark wrote for Lexology.
• The Board will no longer require an “employer” actually exercise its authority to control an employee’s terms of employment. Now, “reserved authority,” even if not exercised by the employer in question, is all that is required in the analysis.
• This decision will continue to impact companies that franchise as well as those that use contractors, staffing firms, and other such arrangements.

Dive Insight:

“To reduce or eliminate the possibility of being tagged with an NLRB charge alleging joint-employer status, companies should reexamine their relationships with workforce service providers,” Stark wrote.

Companies will need to make sure they reduce their amount of control over employees of these hired firms. Stark said that companies will need to ask four questions: Do we have a say in hiring, firing, discipline, supervision and direction of the workers? Do we have a say in wages, hours or number of workers? Do we control scheduling or overtime? And finally, Do we assign work and determine the manner and method of work performance?

While frustrating, employers who don’t pay careful attention to this issue may be forced to deal with unionization and bargaining and take responsibility for other labor issues that occur.

Additionally, some states may have different tests, such as in New York. A “joint employer” according to the NLRB may not be considered as such under New York civil litigation because they follow different rules, Stark said.