Labor board lets workers confront the big boys

In a ruling that could vastly expand liability for businesses — including corporate giants such as McDonald's — the National Labor Relations Board (NLRB) has spelled out just who qualifies as an employer, or a “joint-employer.” The decision is expected to improve legal recourse for the millions of workers employed by two or more bosses, such as on subcontracted construction sites or at retail franchises.

In Browning-Ferris Industries and Leadpoint Business Services v. Teamsters Local 350, a case out of California, a majority of the five-member NLRB held that a joint-employer situation exists where two or more employers control what their workers do. The specific question was whether a group of garbage-sorters, screen-cleaners and housekeepers who had been hired by Leadpoint  — the subcontractor — were also employees of the general contractor, recycling company Browning-Ferris. In earlier proceedings, the regional labor board ruled that Browning-Ferris was not a joint-employer. But the union, a sanitation division of the Teamsters, appealed that decision, arguing that its member-workers were in both companies' employ: Leadpoint had hired them but Browning-Ferris controlled their wages and working conditions.

The NLRB ultimately found that Browning-Ferris and Leadpoint “share or codetermine those matters governing the essential terms and conditions of employment” — that is, each “possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”

The union had asked the NLRB to consider a broadened legal standard for “joint-employer” status, to hold both “parent” companies and their subcontractors or franchisees responsible when sufficient control is exercised over working conditions. In numerous friend-of-the-court briefs filed with the NLRB, worker advocates, employment lawyers and the general counsel of the NLRB supported the Teamsters’ position, arguing that liability must be imposed up and down the chain, based on concrete facts: Who can hire and fire? Who can set wages and schedules?

On the other side, staffing agencies, franchise associations and business groups cried foul for what they see as an improper extension of the joint-employer standard and the NLRB's overreach.