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Long-awaited proceedings began this week in the National Labor Relations Board’s (NLRB) high-profile case over whether McDonald’s is a joint employer with several of its franchisees. While many eyes in the business community are fixed on that case, however, the Board has also agreed to review two more joint employer cases.
As often discussed on this blog, the NLRB changed the standard for finding that two separate business entities are joint employers in an August 2015 decision called Browning Ferris. Under the old standard entities actually had to share the ability to hire, fire, discipline, supervise and direct the workers in question to be found as joint employers. Under the Browning Ferris standard, however, almost any economic or contractual relationship could trigger a finding of joint employer status. The two other joint employer cases that the Board has agreed to review show that Browning Ferris and the McDonald’s case are not the only two tracks on which it will address this issue.
The cases both involve a firm called Green JobWorks, which provides contract employees for demolition and asbestos removal. In one case, Green JobWorks, LLC/Aceco, LLC, the NLRB agreed to consider arguments by Laborers’ International Union of America Local 11 that an NLRB regional director improperly applied the Browning Ferris joint employer standard in finding that Green JobWorks LLC and its customer Aceco LLC are not joint employers. In the second case, Retro Environmental, Inc./Green JobWorks, LLC, the Board will review an NLRB regional director’s dismissal of a union representation election petition based on a finding that Green JobsWorks alleged joint employer relationship with Retro Environmental would soon end.
While the McDonald’s joint employer cases may grab more headlines, observers of labor policy would be wise to keep a close eye on the Green JobWorks cases. The outcomes of the cases are, of course, uncertain. However, given the recent trajectory of the Board, the agency may use these cases as vehicles to clarify or expand its previous reinterpretation of the joint employer standard.