In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status.  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.  

Browning-Ferris Industries (BFI) operates a recycling and waste processing facility in Milpitas, California. Inside the facility, employees sort and process recyclable materials on large conveyor belts. Those employees are not BFI employees, but workers provided by an employment agency – Leadpoint.  Most of the BFI employees work outside the facility.  At the facility, BFI and Leadpoint maintain separate supervisors and lead workers. Leadpoint has total hiring discretion for the employees working inside the plant. The relationship between BFI and Leadpoint is governed by a temporary labor services agreement ("Agreement"). Leadpoint set salaries for its employees, but the agreement between Leadpoint and BFI prohibited Leadpoint from paying its employee more than BFI employees performing the same tasks. BFI requires that employees hired must BFI controlled all scheduling, including whether or not to keep the facility open for overtime work. 

In the decision, the Board applied long-established principles to find that two or more entities are joint employers of a single workforce 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. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.  

In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions.