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In July, InsideCounsel featured an article about proposed changes to the joint employer standard in the NLRB’s pending decision in Browning-Ferris Industries of California, Inc., et al. In Browning-Ferris, the NLRB general counsel advocated outright abandonment of the Laerco/TLI test and adoption of key changes to significantly broaden the reach of the joint employer doctrine. First, elimination of the distinction between direct, indirect, and potential control over working conditions: i.e., potential control is enough. Second, joint employer status should exist where “industrial realities” make the client company essential for meaningful bargaining: i.e., large client companies should be presumed to be joint employers because of their economic power.

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