unionized employees employed at the same facility and the union filed a petition to represent the Leadpoint employees, naming both BFI and Leadpoint as the employer. On appeal, the Board overruled the Regional Director and concluded that BFI and Leadpoint were a “joint employer” within the meaning of the law. Strangely, the Board even announced that it was effectively traveling back in time by returning to the “traditional” joint-employer doctrine. It established (or re-established) a two-part test: Back in the future, the “old” test required the putative employer to have exerted “direct and significant control over the same employees” or “co-determine matters involving the essential terms and conditions of employment.” Relative to that test was the authority to hire, fire, discipline, direct and supervise. Historically, the control necessarily needed to be “actual, direct and substantial – not simply theoretical, possible, limited or routine.” In BFI, the Board rejected the requirement that control be “direct and immediate,” opting for the “direct or indirect” test. Republicans in Congress immediately responded by introducing legislation in both houses, HR 3549 and S. 2015, to repeal the expanded definition handed down by the Board. The legislation is known as the “Protecting Local Business Opportunity Act.” The Board’s most recent decision has far reaching implications, not only on active working relationships involving employers who engaged subcontracted staffing services. The franchise industry is closely examining this decision. This case may open the door for elections and collective bargaining directly between unions, franchise employers and the corporate franchisor. V. THE SEQUEL. While the legal appeals of the “ambush” election rules make their way through the appellate courts, as well as the challenge to the Joint-Employer Doctrine, employers must be mindful that, unless and until Congress or the Courts step in to take conclusive action, and despite philosophical, political and bona fide legal objections to its interpretation of the Act, the Board continues to write its own script.
Welcome back to the future.
Kevin A. Moore, Esquire, is the chair of Leisawitz Heller’s Employment Labor Practice Group and is a past chair of the BCBA Employment Law Section.
Western Star By William W. Runyeon, Esquire The man with no name is not the Virginian, although we do not know his name, either. As an audience, we flirt with the mass marketing of individualism; still, the murky origins of the hero never lose their certain, lonely appeal; doubtless, a renewal of the knight errant, or erring knight, long since resolved in favor of the knight, because he, at least, learns of the right thing to do, and seeks, often thwarted, to do it. Our unnamed heroes have the devil’s own time, figuring out the right thing, without squandering their fleeting chance to do it. Perhaps being knighted by an innkeeper still outshines any light on the walk of fame, and the quest of heroes unnamed, something within the storyline, that may vaguely include efforts, and reasons, beyond box office receipts, to find mysterious treasures, or rescue the fair lady, a near goddess, from the mists of oblivion, and each hero, from the downdraft of a soul abandoned.
Bradford Kissam 610-670-2770 ext. 3182 610.823.7534 cell www.BradKissam.com
“I am always here to serve you”
Bkissam@GoBerksCounty.com Berks Barrister | 17