In its August 27, 2015 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. In the 3-2 decision, two or more entities are joint employers of a single workforce if:
(1) they are both employers within the meaning of the common law; and
(2) they share or codetermine those matters governing the essential terms and conditions of employment.
In evaluating whether an employer possesses sufficient control over employees to be deemed a joint employer, the Board will (among other factors) consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved that authority. Under the broader joint-employer standard, employers that use staffing or temporary agencies make seek to evaluate who possesses indirect and/or direct control over the conditions of an individual’s employment in order to assess the potential for being deemed a joint employer.