Recently, the National Labor Relations Board made sweeping changes to its “joint employer” standard, announcing a new test that will surely lead to more findings of joint employment relationships under the National Labor Relations Act. Under the new standard announced in Browning-Ferris Industries, a company is a joint-employer if it exercises “indirect control” over working conditions or if it has “reserved authority” to do so. This marks a significant departure from the joint employer test that the Board has used for decades, which required that a putative joint employer actually exercise control over terms and conditions of employment, as opposed to merely possessing the ability to do so.

In its 3-2 decision, the Board determined that Browning-Ferris Industries of California, Inc. (BFI), an owner and operator of the Newby Island Recycling facility, should be considered a joint-employer with Leadpoint Business Services (Leadpoint), a Phoenix-based temporary staffing agency, which supplies workers to the facility. BFI employs approximately 60 employees, most of whom work outside the recycling facility, moving and preparing materials to be sorted inside the facility. BFI contracts with Leadpoint to provide in-facility sorters, screen cleaners, and housekeepers under a temporary labor services agreement.

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