As we have previously reported here and here, the NLRB ruled in August 2015 that Browning Ferris Industries of California, Inc., was a joint employer of workers directly employed by a contractor at a waste recycling facility in California. After a Teamsters local prevailed in a representation election, it apparently sought to bargain with BFI and the contractor. To test the Board's ruling, BFI refused to bargain. The Teamsters local filed an unfair labor practice charge, and the Board's General Counsel issued a complaint. On January 12, the Board found that BFI's refusal to bargain was unlawful. On January 20, BFI filed for review of the Board decision by the U.S. Court of Appeals for the District of Columbia Circuit. A ruling from the appeals court can be expected late this year or in 2017, provided the matter is not resolved.
Meanwhile, on January 20, the U.S. Department of Labor's Wage and Hour Division issued an Administrator's Interpretation that the the word "employ" under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act should be given an expansive interpretation to "ensure that the scope of employment relationships and joint employment" under those laws "is as broad as possible." According to the Interpretation, two methods should be applied to determine whether joint employment exists: (1) a horizontal analysis of two or more entities acting in relation to the same employee, such as two or more restaurants each sharing economic ties and management; or (2) a vertical analysis looking at economic dependency between employers, such as exists in subcontractor and general contractor situations. (To repeat, "as broad as possible"!)