If your company engages with contractors to perform services you may think are completely unrelated to your business at first glance…beware. It will soon be more likely that the National Labor Relations Board (“NLRB”) will deem the s employees to be yours. For years, political interests have created a pendulum where the government seems to encourage the use of independent contractors, or severely scrutinize it to reduce contractor status. The pendulum is indeed swinging back again.
After many years of following a single standard for determining joint employer status, the NLRB established a new and restrictive standard in 2015 with the Browning-Ferris case. In Browning-Ferris, the Board held that a company could be deemed the joint employer of its contractor’s employees even if it did not exercise direct or immediate control over those employees. For the Board in Browning-Ferris, the mere “possibility” that the company “could” exercise that control was enough to make it an “employer” for all purposes under the NLRA.