In Browning-Ferris Industries of
California, a 3-2 decision issued on August 27, 2015, the
National Labor Relations Board departed from its long-standing
principles for determining joint-employer status. In the decision,
the Board held that two entities are joint employers if: (1) they
are both employers within the meaning of the common law; and (2)
they share or codetermine those matters governing the essential
terms and conditions of employment (i.e., hiring, firing,
discipline, supervision, job responsibilities, work hours, breaks,
rules, etc.).
The Board determined that Browning-Ferris Industries of
California, Inc., the owner and operator of a recycling facility,
was a joint-employer with Leadpoint Business Services, a temporary
staffing agency, which employed and provided workers to staff the
Browning-Ferris facility. The local union had sought to represent
the employees provided by Leadpoint to Browning-Ferris based on a
joint employer theory. In finding that
