By Pamela Wolf, J.D. The EEOC has filed an amicus brief in the controversial Browning-Ferris Industries of California v. NLRB battle over what exactly makes a joint employer that is now pending in the D.C. Circuit. Why is the EEOC offering its take? "The EEOC’s longstanding joint-employer test is relevant to the appropriate standard under the NLRA because Title VII is based upon the NLRA, the statutes’ definitions of ‘employer’ are virtually identical, and both Title VII and the NLRA are remedial in nature," the commission wrote in its brief. And the EEOC has come down in favor of the Labor Board’s newly articulated joint-employer standard because it is appropriately synced with the commission’s standard. NLRB standard flips back to original. The contemporary battle over the joint-employer standard as interpreted and applied by the Labor Board began when one of its regional directors found that Browning-Ferris was not a joint employer with one of its contractors. On review, the Board abandoned its then-current joint-employer standard and returned to its original standard as set forth in NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982). This standard makes two or more entities joint employers of a single work force when they are "both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment," the EEOC said, noting also that “[a]ll of the incidents of the relationship must be assessed.” The EEOC reiterated the NLRB’s new standard: The Board "will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry. … Nor will we require that, to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exercised indirectly—such as through an intermediary—may establish joint-employer status." Joint-employer EEOC style. The EEOC said that it "has consistently applied a flexible, multi-factor test, based on traditional agency principles under common law, to determine whether an entity has sufficient control over the terms and conditions of employment to qualify as an employer," noting also that there is no single factor that is determinative, and not every factor applies in any given case. Among other considerations, the commission’s joint-employer test "looks at an entity’s right to control the terms and conditions of employment, as well as its indirect control of the terms and conditions of employment"—factors that are also part of the Board’s newly articulated test. Although weight differs from case to case, they are part of the totality of the circumstances, the EEOC added. "Contrary to Browning-Ferris’s argument, the EEOC’s flexible test is neither vague nor unworkable," the commission asserted. "Courts have extensive experience applying the EEOC’s test and the EEOC is unaware of any case suggesting that a bright-line rule would be better. Flexibility is important because employment relationships take many forms. The NLRB’s new test acknowledges this reality." According to the commission, the NLRB appropriately brought its joint-employer standard in line with the EEOC’s. The commission therefore urged the D.C. Circuit to deny Browning-Ferris’s petition for review and grant the Board’s application for enforcement.
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