Many businesses have recently asked me how they can defend against the NLRB’s Browning Ferris and Miller & Anderson rulings, should they be aware of other cases that may extend these holdings into previously unregulated relationships, and generally, what should companies do to comply with the new laws. Here are some answers:
Before Browning Ferris, companies were joint employers only if each one exercised direct and immediate control over the employees. Now, the NLRB may find a company to be a joint employer even if it does not exercise control in a direct and immediate way. The NLRB may also find a company to be a joint employer if in practice it does not exercise any authority at all, as long as it possesses the authority to control employees.
These are still live issues. The D.C. Circuit is currently considering an appeal of the NLRB’s Browning Ferris decision. Miller & Anderson will also likely by appealed to the federal courts.
Future NLRB cases will likely apply the joint employer doctrine to other forms of business relationships. Joint employment can come in many forms, including temporary agencies and other staffing and subcontracting arrangements, and, as the NLRB argues in the McDonald’s case, franchising. The NLRB is looking at a wide range of business relationships and using the joint employer doctrine as a way to apply the NLRA to any sort of arrangement where more than one entity has control over employees.
As it stated in Miller & Anderson, “to the extent that multiple employers will be required, as a practical mater, to cooperate or coordinate in bargaining, that is a function of the freely chosen business relationship between user and supplier employers that defines all joint employer situations.”
Many employers are not waiting to re-examine their business relationships. In response to McDonald’s arguments to the NLRB that it should not be considered a joint employer with its franchises, many companies are working to distance themselves from their partners who they fear could be considered joint employers.
There is no consensus on a single strategy employers should use in light of the changes to the joint employer doctrine. What many employers do have in common is that they are proactively re-examining business relationships in which more than one entity has the authority to exercise some control over employees, regardless of whether the entities involved are currently unionized or not. Some employers are determining that they must make changes now, despite the uncertainty in the joint employment doctrine. Others re not making immediate changes, but are actively strategizing for the future – whatever it may hold.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.