The Alphabet Inc. subsidiary is set to challenge a National Labor Relations Board finding that it jointly employs contract staffers during oral argument at the US Court of Appeals for the District of Columbia Circuit Jan. 27.
The circuit court will likely determine whether the company must bargain with the Alphabet Workers Union, which represents workers directly employed by
More broadly, the case gives the D.C. Circuit its first opportunity to weigh in on the NLRB’s regulation for joint employment, which could have ramifications for companies that rely on contracting, franchising, and other business-to-business arrangements for labor.
The D.C. Circuit plays a special oversight role for the NLRB, as it’s the one circuit that employers and unions can always turn to for their challenges to board decisions.
Google attempted to appeal the NLRB’s joint employer finding in the Fifth Circuit.
But the union contested the board’s rejection of its request for extraordinary remedies against the company in the D.C. Circuit, which was randomly chosen to hear the consolidated appeal.
Joint Employment, Common Law
The D.C. Circuit mostly upheld an earlier version of the board’s joint employer standard in its 2018 decision in Browning-Ferris Industries of California v. NLRB. The court ruled while the NLRB was developing its regulation that, years later, it applied to Google and Cognizant’s relationship.
The circuit court said in its opinion that the board’s rulemaking “must color within the common-law lines identified by the judiciary.”
Although the joint employer rule isn’t being directly challenged, the D.C. Circuit might say the standard clashes with circuit precedent—and send the case back to the NLRB to apply the common-law test it already told the board to use, said Anne Lofaso, a labor law professor at the University of Cincinnati.
Different boards have put their own spin on the common law in their joint employer tests, said Todd Lebowitz, an attorney at the management-side firm Baker & Hostetler LLP. But the D.C. Circuit could look to Loper Bright Enterprises v. Raimondo and ignore the current version, he said.
“The courts know what the common law right to control test is, and they don’t need the NLRB to tell them what to do,” he said.
Judge Patricia Millett, an Obama appointee who authored the circuit’s Browning-Ferris decision, will hear the case, along with Judges Karen Henderson, a George H.W. Bush appointee, and Justin Walker, a Trump appointee.
Even as the case raises several significant issues, the panel signaled Thursday that it might view the matter as moot.
In a brief order, it asked the parties to prepare to discuss “how the expiration of the Google-Cognizant contract and the recission of the 2020 Rule may affect mootness.”
The NLRB rescinded its 2020 joint employer rule as part of its 2023 regulation that set a new standard, but that later measure was blocked by a federal judge and abandoned by the board. The Google-Cognizant case was decided prior to the issuance of the defunct 2023 rule.
From Vote to Court
The dispute stems from the Cognizant workers unanimously voting for union representation in 2023. The election followed a decision by an NLRB regional director holding that Google exerted the direct and immediate control necessary to qualify as their joint employer.
The NLRB upheld the regional director’s ruling applying the more employer-friendly standard for joint employment that an all-Republican board set during the first Trump administration.
Google illegally refused to bargain with the AWU so it could test the NLRB’s finding in court.
In a separate case, the board similarly ruled Google jointly employs a group of Google Help staffers directly employed by Accenture Plc.
“The NLRB’s rulings on both the Cognizant and Accenture cases and rejections of Google’s appeals have made clear this pattern of co-employment and Google’s responsibility to bargain with our members,” Stephen McMurtry, a Google worker and member of the AWU board, said in a statement. “Rather than drag this process into the courts, we call on Google to bargain in good faith with their workers as the law requires.”
Google has no objection to Cognizant or Accenture workers forming unions, company spokesperson Courtenay Mencini said in a statement. But it’s only appropriate for their employers to bargain, as Google doesn’t control their terms of employement, she said.
Cognizant spokesperson Bill Abelson and NLRB spokesperson Teddy Quinn declined to comment.
The AWU is an affiliate of the Communications Workers of America. The CWA is affiliated with the Washington-Baltimore News Guild, which represents employees of Bloomberg Law.
The case is Google LLC v. NLRB, D.C. Cir., No. 24-1003, oral argument scheduled 1/27/25.