Mackall, Crounse & Moore, PLC has joined Dewitt Ross & Stevens S.C.

The newly formed DeWitt Mackall Crounse & Moore S.C. will provide clients with enhanced legal services
and efficiencies as well as access to more than 100 attorneys practicing in nearly 30 areas of
law in Wisconsin and Minnesota.

Dismiss this message


News & Education

Back to Employment Law News Feed

Filter by:

The NLRB Redefines The Joint Employer Standard

Earlier this year, the National Labor Relations Board (“NLRB”) issued its decision in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (2015) which provided an overhaul of the NLRB’s longstanding joint employer doctrine. Now, two employers may be considered joint employers, and therefore subject to union organizing and bargaining for the same employees, if there is at least possession of the right to control and the indirect exercise of control by one business over the terms and conditions of employment of another business’ employees. The potential effects of the Browning-Ferris decision are numerous.

Browning-Ferris operated a recycling facility in California. Browning-Ferris had a labor services agreement with Leadpoint, which supplied workers to perform duties at Browning-Ferris’ facility. The Union eventually sought to represent the employees supplied by Leadpoint who worked at Browning-Ferris’ facility. The Board’s Regional Director determined that Browning-Ferris was not a joint employer of Leadpoint’s employees based upon past precedent requiring joint employers to “share or codetermine [] those matters governing the essential terms and conditions of employment.” Id. at 6. Ultimately, the Regional Director’s decision was appealed to the Board.

In its decision, the NLRB “restated” the joint employer standard. Under the new standard, to determine whether two employers share or codetermine those matters governing the essential terms and conditions of employment, the Board will look at whether there is a common-law employment relationship with the employees in question. If so, the Board will determine whether the putative joint employer possesses sufficient control over the same employees. The Board made clear that it no longer requires the actual exercise of authority over terms and conditions of employment—the right of control is enough. Id. at 15-16. Further, the exercise of indirect control, as opposed to direct control, is sufficient to support a joint employer finding. Id. The Board stated “the right to control, in the common-law sense, is probative of joint-employer status, as is the actual exercise of control, whether direct or indirect.” Id. at 16. This new standard requires a factual inquiry into complex business relationships that typically are often not created with labor relations in mind.

Legislation has been referred to a congressional committee that would legislatively overrule the NLRB’s decision in Browning-Ferris. On September 9, 2015 the Protecting Local Business Opportunity Act was referred to a congressional committee. The Act would provide that “two or more employers may be considered joint employers for purposes of [the NLRA] only if each shares and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.” See S. 2015 and H.R. 3459, available at

It seems that under the joint employer standard outlined in Browning-Ferris, two businesses could be tangled up in one another’s unfair labor practices, mandatory bargaining obligations, and/or other duties imposed by the National Labor Relations Act. The Board’s new joint employer standard provides businesses and companies an opportunity to review their contractual agreements to assess the risk of a joint employer finding. As the Board stated, the exercise of indirect control and possession of the right to control is enough to support a joint employer finding, so to the extent these exist in your contracts, you should consider the risks. If you would like additional information or assistance in reviewing your company policies and procedures, please do not hesitate to contact your DeWitt attorney.

About the Author

Jordan Rohlfing is a senior associate at DeWitt LLP. She is an active member of DeWitt’s Litigation, Labor & Employment Relations, and Background Screening practice groups. She is dedicated to providing top-quality legal services for all of her clients. She regularly counsels businesses with respect to issues and claims that arise under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Wisconsin Fair Employment Act, the Family and Medical Leave Act, the Fair Labor Standard Act, the National Labor Relations Act, and many other federal and state laws related to discrimination, harassment, retaliation, and wage and hour issues, among others.

Contact Jordan by email or phone at (608) 283-5509.

Our Locations

Greater Milwaukee - Get Directions

Green Bay - Get Directions

Madison - Get Directions

Minneapolis -Get Directions



Get to know us

DeWitt LLP is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota. It has more than 130 attorneys practicing in Madison, Greater Milwaukee, Green Bay and Minneapolis in over 30 legal practice areas, and has the experience to service clients of all scopes and sizes.


We are an active and proud member of Lexwork International, an association of mid-sized independent law firms in major cities located throughout the Americas, Europe and Asia and an active member of SCG Legal, an association of more than 140 independent law firms serving businesses in all 50 state capitals and major commercial centers around the world.


Super Lawyers 2021
Best Lawyers 2013 – 2021
Compass Award 2012
Top 100 Lawyers: National Trial Lawyers Association


While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an “engagement letter”). You will not be a client of the firm until you receive such an engagement letter.

The best way for you to initiate a possible representation is to call DeWitt LLP at 608-255-8891. We will make every effort to put you in touch with a lawyer suited to handle your matter. When you receive an engagement letter from one of our lawyers, you will be our client and we may exchange information freely.

Please click the “OK” button if you understand and accept the foregoing statement and wish to proceed.