The NLRB is expected to release its long-anticipated decision in Browning-Ferris Industries of California, Inc. shortly, possibly today. This decision will likely mark a radical departure from the currently accepted standard applied by the Board to determine when a business is held to be a joint employer of another employer’s employees. Nearly every sector of the U.S. economy, unionized and non-unionized, may be affected if the NLRB dramatically expands the risk businesses have of being found liable as a joint employer under the National Labor Relations Act for collective bargaining obligations, unfair labor practice liability and exposure to secondary boycotts, and liability to unions in a host of other circumstances. Joint employer issues could arise from a variety of relationships such as between contractors and subcontractors, parent entities and subsidiaries, investors and those who operate their investments, and franchisors and franchisees. These critical business relationships could be dramatically impacted.
Beyond its effects under the National Labor Relations Act, the standards for determining joint employer status under other laws may also be influenced by the standards set forth in the Browning-Ferris decision. The EEOC filed a friend of the court brief before the Board in this case, arguing for an expansion of the joint employer standard. The Department of Labor’s Wage & Hour Division, which issued guidance just last month expanding the definition of employee in the context of independent contractor classification, is widely expected to weigh in on the joint employer issue for franchisors, contractors, and parent corporations. Other governmental agencies and liability under other federal statutes--such as the OFCCP, OSHA, ERISA, FMLA, and many more--may be similarly affected. State laws could also be affected.
Given the magnitude of these potential changes to business models generally, labor and employment law, and joint-employer status more specifically, we are inviting our clients and friends to participate in a webinar following the release of the Board's decision. We plan to discuss the following issues, and may expand the agenda to include other topics as details of the NLRB’s decision emerge:
- Overall ramifications for pending and future actions before the NLRB
- Impact on both unionized and non-unionized employers under the NLRA
- Potential expansion of a broadening of joint employer status by other agencies, including the DOL and the EEOC
- Implications for franchisors, for example, in the hotel and restaurant industries
- Risks for businesses and the contractors they use in the construction, trucking, distribution, janitorial, warehousing, maintenance, and other industries
- Potential impact on private equity and venture capital firms
- What businesses should do now to minimize risk and potential exposure from these relationships
Seyfarth Shaw’s labor & employment attorneys are monitoring the status of the Browning-Ferris case closely and will advise the employer community as soon as a decision has been issued. We look forward to sharing our analysis and preliminary recommendations with you in the near future.
If you have any questions, please contact firstname.lastname@example.org.
*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session