Board Reverses ALJ Decision; Finds No Joint Employer Relationship

Los Angeles Unified School District (PERB Dec. No. 1930E) (Issued 11/28/07)

This case involved allegations of retaliation brought by two teachers against the San Jose/Evergreen Community College District (District). The two teachers taught classes offered by the South Bay Regional Public Safety Training Consortium (Consortium), which was a joint powers agency between the District and Gavilan Community College District. The issue before the Board was whether the District was a joint employer, together with the Consortium, of the teachers.

The ALJ, relying on the Board’s decision in Ventura County Community College District (2003) (PERB Dec. No. 1547), held that the District was a joint employer of the two teachers. In finding a joint employer relationship, the ALJ relied heavily on the fact that the documents creating the consortium stated that the teachers would be considered employees of the member districts. The Board majority reversed the ALJ decision, finding that the “District’s initial acts of control over the Charging Parties fail to meet the level of substantial control necessary to support a finding of a joint employer relationship in this case.” While acknowledging that the operational documents of the consortium listed the member districts as the employer of the teachers, the majority focused on the undisputed fact that the consortium had been hiring teachers directly for some time. According to the majority, “the key inquiry in joint employer cases is the level of actual control exerted over the shared employees.”

The majority’s reversal of the ALJ’s decision drew a rare dissent. The dissent argued that the majority’s opinion would create an “unwarranted safe harbor for the District, which would otherwise be subject to the jurisdiction of the EERA.” According to the dissent, the purposes of EERA would be frustrated if the Consortium could ignore the terms of its operational documents which provide that the member districts are the employers of the teachers.

The result in this case was based heavily on the specific facts. However, since the creation of joint powers agencies is becoming more common, public agencies should take note of the lessons here. This case (which very likely will be appealed) serves as a warning to employers that what you say on paper is not as important as what you actually do. Similar to disputes over whether someone is an employee versus an independent contractor, whether an agency will be found to be a joint employer will rest primarily on the actual right of control the agency exerts over the employees.