In a ruling that has many employers and attorneys predicting that the days of using temporary employees or subcontracting work may be over – at least as we know it – the NLRB in Browning-Ferris Industries of California, Inc. expanded the joint employer standard to allow two or more otherwise unrelated employers to be considered a joint employer under the NLRA if they “share or co-determine those matters governing the essential terms and conditions of employment.” The Board lowered the standard, and instead of requiring that a joint employer exercise actual authority over employees’ terms and conditions of employment, will consider whether the entity has the right to control along with actual control.
Given that the PLRB generally adopts NLRB rulings – it is likely that if tested, the same standard will apply to Pennsylvania school districts and companies that provide contract services to them, such as bus companies, food service providers, etc. This could expose districts to unfair labor practice charges related to these third party arrangements or could allow unions attempting to organize these outside companies to draw the districts into negotiations. Essentially, the decision means that in any situation where a district contracts with a third party to obtain services provided by workers who are in any manner under the actual or even potential control of the district – the district may be a joint employer. Some of the key factors considered by the NLRB included whether the user of services has authority to dictate terms such as wages and hours, the number of workers to be supplied, scheduling, overtime, assignment of work, and the manner and method of work performance. As has always been the case, the more direct the influence and control, the more likely a joint employer relationship will result – but this decision eliminates the requirement that such power be exercised directly, immediately and not in a “limited and routine” manner.
As such, this ruling has the potential to expose districts to joint employer liability in situations where it had previously taken adequate measures to avoid such liability. If your district has existing or potential contracts with third party service providers, now would be an excellent time to review these contracts to determine what changes may be required to further minimize the risk of joint employer liability under this new framework.
This post was written by Christine Nentwig. It was included in the October 2015 edition of CGA’s School Law Newsletter.