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ARTICLE · 04 SEPTEMBER 2015

Five Practical Issues Browning-Ferris Creates For Employers

McGuireWoods LLP
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National Labor Relations Board's decision in Browning-Ferris Industries of California, Inc., will have significant and far-reaching effects as it greatly expands the scope of relationships in which the Board can and will find entities to be joint employers.

United StatesEmployment and HR
Brennan Bolt
Brennan Bolt
Seth Borden
Seth Borden
Richard Hankins
Richard Hankins

National Labor Relations Board's decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), will have significant and far-reaching effects as it greatly expands the scope of relationships in which the Board can and will find entities to be joint employers. While the full ramifications of the Board's decision remain to be seen, here are five issues, which are discussed thoroughly by Members Miscimarra and Johnson in their dissent, that employers will likely face as a result of Browning-Ferris:

1. No Certainty or Guidance On When a Joint Employer Relationship is Formed

Under the Board's new standard where "all of the incidents of the [business] relationship must be assessed," it is impossible to predict how the Board will weigh and factor those facts in deciding whether a joint-employer relationship exists. As noted by the dissent, the new test gives the Board the discretion to "give dispositive weight to an employer's control

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