“I Hired That Individual Through a Staffing Agency, Are They My Employee or Not?”

5.15.2018

The National Labor Relations Board is grappling with the scope of the joint employer doctrine.  The doctrine holds that an individual working in a single role can be simultaneously/jointly employed by more than one employer.  For example, an employee working at a location for a restaurant that is a national franchise may be considered an employee of both the restaurant where they work and the franchisor. Additionally, subcontractors could be considered employees of not only the company they work for but the employer, where they work on a daily basis, that controls their working environment.

The key question in the analysis is whether the franchisor or the entity receiving services that are provided by an “independent contractor” exercises sufficient control over the working individual, such that the individual is considered an employee.  The question becomes how much control is too much control?  In the landmark case of Browning–Ferris Industries, the National Labor Relations Board examined “all of the incidents of the [employment] relationship” and the Board held that even “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint – employment inquiry.”  This is a broadening of the joint-employer test.  The Browning-Ferris case was appealed, in January 2016 to the D.C., Circuit Court of Appeals.

The EEOC submitted a brief in support of the broad test. The EEOC uses a multi factor approach to determine if there is a joint employment relationship. They consider factors such as: whether the employer has the right to control the “means and manner” of the work; whether the employer furnishes the equipment used to perform the work and the work site itself; whether the work performed is an integral part of the employer’s business; and the parties’ respective rights and obligations should either wish to terminate the relationship. It is important to note that the list of factors is not exhaustive and no one factor is more determinative then another.  However, the more factors to which a company says “yes,” the greater chance the individual is an employee.

The appeal is pending and debate over what constitutes a joint employer will continue.  For the time being, the case of Browning-Ferris remains the law under the NLRB and the standard is the broader “indirect control.”  Although, it is also imperative to monitor the other governmental agency standards like the EEOC standard mentioned above.

TAKEAWAY: Are you a joint employer?

Tag: Joint Employment Relationship

BLOG DISCLAIMER

The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com.  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

Sign Up

Tracy Armstrong Photo

Tracy Armstrong
Co-Chair, Employment Law Team
Shareholder
732.855.6020