The NLRB’s Browning-Ferris Decision Explained

Introduction

In its August 2015 decision in the Browning-Ferris Industries (BFI) case, the National Labor Relations Board did two things:

• The Board reinstated its previous “joint employer” standard under the National Labor Relations Act (NLRA), reversing the Board’s unexplained and unwarranted trend in recent years to narrow its applicable standard.
• In so doing, it found that in a case brought by recycling workers seeking to join a union and bargain over the terms and conditions of their jobs, BFI is a joint employer with its staffing company.

In today’s economy, subcontracting and use of labor intermediaries such as staffing firms often result in degraded working conditions and diminished worker access to collective bargaining.  As a result of the Board’s decision restoring the appropriate joint employer standard, companies that share control over working conditions at a job are on notice that they may also share accountability for those conditions, which in turn should result in better oversight and compliance with basic labor rights.

The Board’s decision simply stands for the unremarkable position that when companies like BFI decide to outsource portions of their workforce to staffing companies or other labor subcontractors, yet still retain control over the work, they remain accountable, along with their contractors, for labor protections.