## Facts

- Browning-Ferris Industries of California, Inc. (BFI) operated a recycling facility in Milpitas, California, employing its own workforce and using a staffing vendor, FPR-II, LLC d/b/a Leadpoint Business Services, to supply additional workers (sorters, screen cleaners, and housekeepers).
- Teamsters Local 350 sought to represent the Leadpoint-supplied workers and argued BFI and Leadpoint were joint employers under the National Labor Relations Act (NLRA).
- Under the service agreement, BFI retained the right to reject Leadpoint-provided personnel “for any or no reason” and to discontinue use of particular workers.
- Leadpoint handled hiring, firing, and discipline on paper, but BFI supervisors requested removals or reassignment of workers whose performance did not meet BFI expectations.
- Leadpoint set pay rates, but the contract capped Leadpoint employees’ wages so they would not exceed wages paid to comparable BFI employees.
- BFI controlled operational decisions affecting working conditions, including the number of workers on production lines, conveyor speed, shift schedules, and break timing; Leadpoint managed assignments within those constraints.

## Issues

1. Under the NLRA and common-law agency principles, what standard governs whether two entities are joint employers of the same workers.
2. Whether an entity’s indirect control over workers, and its contractually reserved right to control, may be considered in determining joint-employer status.
3. Whether the Board’s application of indirect and reserved control in this case exceeded common-law limits by treating ordinary contracting influence as joint-employer control.

## Decision

- The NLRB (2015) reversed the Regional Director, revised its joint-employer standard, and found BFI and Leadpoint were joint employers of the petitioned-for employees.
- The D.C. Circuit (2018) upheld, as a matter of law, the Board’s ability to consider both reserved control and indirect control when tied to essential terms and conditions of employment.
- The D.C. Circuit granted the petition for review in part, denied enforcement, and remanded because the Board did not adequately confine “indirect control” to the types recognized by common-law agency, and did not clearly distinguish such control from ordinary arm’s-length contract terms.

## Legal Principles

- Joint-employer status under the NLRA must be assessed using common-law agency principles, including the relevance of a putative employer’s right to control.
- The Board may consider both (a) control exercised indirectly through an intermediary and (b) a reserved contractual right to control, but only insofar as the control bears on essential terms and conditions of employment.
- “Indirect control” must be limited to forms of control that the common law treats as probative of an employment relationship; routine contractual influence over a contractor’s performance, quality, or costs is not enough by itself.
- A joint-employer standard must identify which types of control matter and explain how that framework permits meaningful collective bargaining over essential employment terms.

## Conclusion

The litigation established that reserved and indirect control can be relevant to NLRA joint-employer determinations, but required the Board to constrain and explain its indirect-control analysis so it aligns with common-law limits and does not convert ordinary service contracting into joint employment.


Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. 2018)