The Browning-Ferris Effect: I-9 Enforcement Actions

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I am pleased to share my Law360 article regarding I-9 enforcement actions.

Since the Aug. 27, 2015 decision of the National Labor Relations Board in Browning-Ferris Industries of California Inc., 362 NLRB No. 186, in which the NLRB swept away 30 years of precedent to rewrite the definition of who is a joint employer, employers and their advocates have been considering how this decision will impact employer liability in other contexts.

The issue at stake in Browning-Ferris was whether the International Brotherhood of Teamsters could include a group of laborers employed by a subcontractor of Browning-Ferris in a collective bargaining action. The Teamsters argued that the subcontractor was a joint employer because it provided temporary labor at a recycling plant of Browning-Ferris. The NLRB agreed with the Teamsters and set out a new test. To determine the “exercise of a control” in the workplace, the board will consider the ways in which employers may “share control” or “co-determine” the terms and conditions of employment. The NLRB held that “the right to control in the common law sense is as probative of joint employer status as is the actual exercise of control, whether direct or indirect.”

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