In a widely dreaded reversal of more than 30 years of precedent, a majority of the NLRB found that an alleged joint employer does not have to actively “codetermine” or control terms and conditions of employment in order to be considered the “employer” of its contractor’s employees. Under the standard announced last week, the NLRB will require only that a joint employer “possess the authority to control” a term or condition of employment. It simply will not be necessary for a union to present any evidence of the exercise of that authority. Accordingly, the NLRB acknowledged that even commercial agreements could be utilized to prove that, for example, a franchisor is the “joint employer” of a franchisee’s employees (watch out McDonalds!)

Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015)