In Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015), the National Labor Relations Board (“Board”) revised the standard for determining a “joint employer” for purposes of the National Labor Relations Act (“Act”). In so doing, the Board overruled thirty years of precedent, claiming that its recent decision represents a “return” to the test it set forth in NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117 (3rd Cir. 1982). Not surprisingly, the decision is split on party lines, with a strong dissent from the two Republican members.

It is unclear at this time exactly how this ruling will play out – most likely Browning Ferris will appeal the decision. However, the immediate impact of the decision is obvious - this new standard will subject many entities to new bargaining obligations, union strike and protest activity and potential liability for the unfair labor practices of other entities.

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