Will the joint employer debate ever be settled? That remains an open question.
As we recently discussed, the "new" NLRB restored a more employer-friendly 2020 standard following the Biden-era version. This move reinstates a higher threshold: Employers must exercise “substantial direct and immediate” control over core workplace conditions shared with another business before being classified as a joint employer.
Now, a high-profile case will head to federal court and could reshape how that standard is applied. In doing so, this case demonstrates that agency rulemaking is not the end of the story.
From The Board To The Courtroom
Following an NLRB ruling last week, Google is preparing to challenge the finding that it’s a joint employer of workers employed by its subcontractor, Accenture Flex. If that determination stands, Google and Accenture would both be required to bargain jointly with the CWA-affiliated Alphabet Workers Union, which has represented Accenture’s designers, analysts, and content creators since 2023.
Within the decision itself (20-CA-353557), the Board declared, “At all material times, the Respondent has possessed and exercised control over the labor relations policy of Accenture Flex.” Meanwhile, Google asserts that it hasn’t controlled employment terms or conditions (such as wages, scheduling, and benefits) of Accenture workers since they unionized. The tech giant’s position is that it has no obligation to bargain with the union.
The Board found that Google violated the NLRA with this refusal, and following this NLRB ruling, Google can take the challenge to federal court.
The Legal Procedure At Work
Federal labor law doesn't allow companies to directly contest a union certification in court. And as we have discussed, the Board recently preserved the Ex-Cell-O mechanism, which gives employers a legal path to challenge a union certification by refusing to bargain. That refusal typically triggers a ULP charge, which then opens the door to federal court review.
That’s where this case will go after the NLRB rejected Google's factual arguments while noting that litigation had already resulted in a joint employer finding, and Google did not present newly discovered evidence.
Does Google's claimed reduction in control over Accenture workers' wages and benefits since the certification change the analysis? The Board didn’t buy Google’s argument, and now it’s up to the court to decide.
Why This Case Matters Beyond Google
The Google case illustrates that a favorable joint-employer standard helps only employers whose facts support it. Where actual control exists, as the Board found here, the higher threshold doesn't insulate a business from liability. The Board’s standard defines the test, but the facts determine the outcome, and now, Google will seek further review beyond the Board.
As we recently noted when the D.C. Circuit ordered the Board to reaffirm Browning-Ferris in regard to another employer, federal courts retain independent authority over how joint employer standards are applied. That case and the Google showdown serve as a reminder that agency rulemaking and judicial precedent can move in very different directions.
Although the 2020 joint-employer standard is back in place, courts determine when that liabilityattaches. Employers should watch this case closely, especially where questions of actual control arise after a union is already certified. This scrutiny should extend to stress-testing staffing agency arrangements and subcontracting relationships accordingly.
The joint employer question will never be a clear-cut matter, despite any NLRB rule. Courts will continue to weigh in, and the Google case is the latest development worth watching.
