After Browning-Ferris: The Ballooning Definition of "Employer" and Implications for NLRB, EEOC, and OSHA

This change in the legal landscape was prompted, at least in part, by the Board’s assertions that “the diversity of workplace arrangements in today’s economy has significantly expanded” and that the current standard does not reflect the “industrial realities” of an increasingly contingent workforce. In unionized environments, the Board’s decision in Browning-Ferris will have immediate implications regarding which entities bear responsibility for collective bargaining obligations. But beyond the NLRA implications and notwithstanding the lack of evidence in support of a nationwide shift toward a “sharing economy,” the Board’s pronouncement of a new joint-employer standard likely will have far-reaching effects in all areas of employment law.

As the Obama Administration enters its final year, businesses should expect the agencies charged with enforcing employment statutes — including the NLRB, the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA) — to take an expanded view of what it means to be employed by an entity. Whether or not the concept of a sharing economy continues to gain steam, these changes to the historical notions of employment will have a broad impact, particularly on contingent worker arrangements, franchising, and outsourcing.