U.S. Chamber Criticizes NLRB’s Re-write of Joint-Employer Standard

Thursday, August 27, 2015 - 3:30pm

WASHINGTON, D.C. — The U.S. Chamber of Commerce today expressed strong opposition to the National Labor Relations Board’s (NLRB) issuance of its decision in Browning Ferris Industries, which radically upsets the NLRB’s longstanding “joint employer” standard.

“This decision has broad implications as it appears to upend decades of settled law defining who the employer is under the National Labor Relations Act,” said Randy Johnson, senior vice president for Labor, Immigration and Employee Benefits at the Chamber. 

For the last 30 years, under the National Labor Relations Act (“NLRA”), two separate business entities have been considered “joint employers” if both entities exercise direct and immediate control over the terms and conditions of employment of the same workers. This means that both entities share the ability to hire, fire, discipline, supervise and direct the workers in question. The test announced today in Browning Ferris discards this well-established standard in favor of one in which almost any economic or contractual relationship could trigger a finding of joint employer status.

“Because of the array of obligations and liabilities that attach with a finding of joint employer status, the Browning-Ferris case could lead many employers to significantly alter or limit the contractual agreements into which they enter,” continued Johnson. “This will reduce employer flexibility and competition at a time when the economy continues to experience anemic economic growth.”

“By tossing out this current test, the NLRB’s actions today will subject employers to increased uncertainty, liability for workplaces that they don’t actually control, and ramped up pressure tactics to ease union organizing,” said Glenn Spencer, vice president of the Chamber’s Workforce Freedom Initiative, which earlier this year issued a report on the joint employer issue entitled, “Opportunity at Risk.”

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.