## Facts

- Browning-Ferris Industries of California, Inc. (BFI) operated a recycling facility and directly employed about 60 workers.
- BFI contracted with a staffing firm, Leadpoint, to supply additional workers (including sorters, cleaners, and housekeepers) who worked at the same facility.
- Leadpoint handled many day-to-day employment functions for supplied workers (hiring, supervision, pay, discipline, and discharge), subject to contractual and operational constraints imposed by BFI.
- BFI set required qualifications for Leadpoint hires at the facility and retained the right to reject or remove any Leadpoint worker, with or without cause.
- Under the contract, Leadpoint could set wages but could not pay a supplied worker more than BFI paid its own employees for similar work.
- BFI specified shift timing and length and controlled whether and when breaks were permitted; Leadpoint assigned individual workers to specific shifts.
- BFI controlled facility workflows (including how many recycling streams to run and at what pace), affecting staffing needs and working conditions for supplied workers.
- A union petitioned to represent the Leadpoint-supplied workers and asserted that BFI and Leadpoint were joint employers for collective bargaining purposes.
- After a Regional Director found no joint-employer relationship under then-prevailing precedent, the National Labor Relations Board (Board) adopted a broader joint-employer standard and found BFI and Leadpoint to be joint employers, prompting judicial review.

## Issues

1. Whether the Board may treat an entity as a joint employer under the NLRA based on its reserved right to control and indirect control over workers’ essential terms and conditions of employment, consistent with common-law agency principles.
2. Whether the Board lawfully applied that standard by distinguishing indirect or reserved control over essential employment terms from economic or operational control typical of ordinary third-party contracting.

## Decision

- The court upheld the Board’s general legal standard to the extent it permits consideration of both reserved control and indirect control in assessing joint-employer status.
- The court granted the employer’s petition for review in part and denied enforcement of the Board’s order, concluding the Board did not apply the indirect-control inquiry within common-law limits.
- The court remanded for the Board to reconsider and better explain which forms of indirect or reserved control reflect control over essential terms and conditions of employment, as opposed to control that is merely incidental to a contractor relationship.
- The court dismissed the enforcement application as to the staffing firm without prejudice.

## Legal Principles

- The NLRA’s concept of “employer” incorporates common-law agency principles, including the relevance of the right to control the manner and means of work.
- In joint-employer analysis, the Board may consider:
  - reserved rights to control, even if not exercised; and
  - indirect control exercised through an intermediary, when it bears on essential terms and conditions of employment.
- The joint-employer inquiry must be limited to control over essential employment terms (such as wages, hours, scheduling, hiring, discipline, and discharge) and must not treat routine contractual oversight, quality control, or operational requirements as equivalent to employment control.
- When relying on indirect control, the Board must explain how the alleged control reflects an employment relationship at common law rather than ordinary business-to-business contracting.

## Conclusion

The court accepted that reserved and indirect control can be relevant to joint-employer status under common law, but remanded because the Board did not adequately separate control over essential employment terms from control typical of ordinary contracting arrangements.


Browning-Ferris Indus. of Cal., Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018)