PARTIES; DEFINITIONS; WHO IS AN EMPLOYER? – Joint Employer, Single Employer, and Alter Ego Doctrines

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In order to demonstrate that two entities constitute joint employers, union must show that they share influence over, or co-determine, one or more terms or conditions of employment. (County of Ventura (2009) PERB Decision No. 2067-M, p. 4. Evidence satisfies this standard if the County retains “the right to control the manner and method in which the work is performed.” (Id. at p. 6) PERB follows the “right to control” test, meaning it is irrelevant whether an employer having such a right of control chooses to use it by exerting actual control over employment terms or conditions. (pp. 28-29.) Board disapproves any suggestion that a joint employer finding depends on actual control, and endorses the right of control test as articulated in PERB caselaw and consistent with both California appellate precedent and the NLRB’s full explanation of the right of control test in in Browning-Ferris Industries of California, Inc. (2015) 362 NLRB No. 186 (Browning-Ferris II). A public entity with a right of control maintains its status as an employer regardless of the extent to which it exercises actual control. (p. 31-32.)