The Browning-Ferris Case: The Joint Employer Standard and Its Shifts

The Browning-Ferris joint employer standard, set by the National Labor Relations Board in 2015, holds that two separate companies can be treated as joint employers of the same workers when one of them has the authority to control essential terms of employment, even if that control is exercised only indirectly through another firm or reserved in a contract and never actually used.¹

The Case Behind the Standard

The decision, 362 NLRB No. 186, grew out of a recycling facility where Browning-Ferris Industries of California used sorters supplied by Leadpoint Business Services. When a union petitioned to represent those sorters, the board had to decide whether Browning-Ferris shared employer status with Leadpoint. In examining the arrangement, the board looked at how Browning-Ferris controlled work processes and task assignments for the Leadpoint-supplied workers, and at its contractual authority over who Leadpoint could hire to work at the site.¹

What Changed From the Prior Rule

Before Browning-Ferris, the board generally required a company to exercise direct and immediate control over workers before treating it as a joint employer. Under that older approach, a business had to actively manage daily tasks or hiring decisions to face obligations under the National Labor Relations Act.²

The 2015 ruling dropped that requirement. Two forms of control became enough on their own:

Indirect control. A company can influence workers through an intermediary such as a staffing agency or a manager employed by another firm.
Reserved control. A company can hold a contractual right to manage workers and still count as a joint employer even if it never exercises that right.

Both were central to the Browning-Ferris facts, from the way work was assigned on the sorting line to the contractual say Browning-Ferris kept over Leadpoint’s hiring.¹

Essential Terms of Employment

Joint-employer analysis turns on control over the essential terms and conditions of the job. Those typically include:³

Wages and benefits
Scheduling of hours and shifts
Hiring and discharge
Discipline, supervision, and direction of work

Who Is Affected

The standard reaches business models built on third-party labor: staffing arrangements, subcontracting, and similar setups where the workers on site are on someone else’s payroll. A company that uses contracted labor has to weigh how much say it keeps over those workers, because enough control on the essential terms can pull it into shared responsibility for labor law compliance.³

Franchise systems sit in the same analysis. General branding and operational guidelines are ordinary, but a parent that uses those guidelines to dictate labor practices or essential employment terms can find itself classified alongside the franchisee. Joint-employer status is a fact-specific determination, so the line runs case by case.

What Joint-Employer Status Requires

Once two entities are joint employers, both carry obligations to a union that represents the workers. Each must bargain in good faith over the terms and conditions of employment, and a company cannot sidestep the table by pointing out that the workers are technically on a staffing agency’s payroll.³ Refusing to bargain in good faith is an unfair labor practice under federal law.⁴

Liability is shared as well. Joint employers can be held jointly and severally responsible for each other’s unfair labor practices, and where the board finds a violation, it can order remedies such as reinstatement or back pay to put workers in the position they would have been in.⁵³

A Standard That Has Shifted Since

The specific framework for joint employment has been changed more than once by later board actions and rulemaking, so the exact test in force at any given moment is not fixed by Browning-Ferris alone.² What the 2015 decision durably marked was the move toward asking whether a company shapes working conditions through intermediaries or through rights it holds on paper, not only through hands-on management.