In its continued effort to increase unionization rates, the NLRB will likely lessen the standard for finding companies are joint-employers, resulting in a myriad of results for both companies. Currently, employers that are legally separate but both exercise a significant degree of control over the same employees’ essential terms and conditions of employment may be deemed joint-employers. This arrangement is common in warehousing and third-party logistics companies, but these employers are rarely found to be joint-employers.

The Teamsters recently appealed a decision stating that Browning-Ferris Industries of California and staffing agency Leadpoint Business Services, Inc. are not joint-employers with respect to workers at a BFI-owned facility. The union argued that meaningful bargaining was impossible without BFI’s participation and the finding that there was no joint employment “prevents the workers from bargaining with the company that really determines their terms and conditions of employment.”

If the standard for finding joint-employer status is lowered, both employers would have to bargain with the union for collective bargaining agreements, both would have to respond to information requests from the union (which may include financial information as stated in the NLRB General Counsel’s priorities list), and both companies would be on the hook for alleged labor law violations.