Martucci Quoted in Law360 on Browning-Ferris’ Impact, One Year Later

Shook, Hardy & Bacon’s National Employment Litigation & Policy leader Bill Martucci discusses the Browning-Ferris decision’s effect on the joint employer standard in an August 16 Law360 article, “One Year After Browning-Ferris, Employers Decry Uncertainty.”

One year ago, the National Labor Relations Board significantly broadened its standard for joint employment. The relationship at issue was between Browning-Ferris Industries of California and workers from staffing agency Leadpoint Business Services. In the decision, the NLRB changed its previous joint employer standard from a business having “direct and immediate” control over terms and conditions of employment to include “indirect control.”  

Martucci notes that due to Browning-Ferris, companies are more cautious about taking too much control in the daily responsibilities of staffing agencies or contractors. He explains, “What this means as a practical matter for the contracting employers, is there will be more of a separation, if you will, in terms of the contractual language and the actual working relationship.” Martucci continues, saying that the effect of this separation will likely be “higher costs and less flexibility.”

Additionally, Martucci expresses that for many years, there were fairly clear distinctions to determine joint employers, particularly in franchising. He states, "The aspect here that's more dramatic than simply the fact the law changes, is the fact the [franchise] business model is now subject to attack when it had such a long run of being thought of as a bright-line distinction between what would be considered employment relationships and which way that employment relationship would run.”