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NLRB Proposes Joint Employer Test Revision

On Thursday, the National Labor Relations Board released a draft rule that would roll back the previously reported Browning-Ferris Industries decision, which loosened the board’s test for determining whether affiliated businesses are joint employers.

The rule, which is set for publication in the Federal Register on Friday, proposes that the board will only find that a business jointly employs company’s workers if it “possesses and exercises substantial, direct and immediate control” over them. Workers can collectively bargain with joint employers and hold them mutually liable for labor violations.

The rule would overturn a test established in the NLRB’s 2015 Browning-Ferris decision allowing a joint employer finding even where a company has only “indirect” control over company’s workers.

The proposal comes as the Board has struggled to broaden the joint employer standard in case law, which is the typical avenue for interpreting the NLRA. As you may recall, the board overturned Browning-Ferris in a case involving an Iowa builder called Hy-Brand Industrial Contractors Ltd., but later pulled that ruling after ethics officials concluded Board Member Bill Emanuel should have recused himself from the decision because of his ties to management-side law firm Littler Mendelson PC, which represented a party in Browning-Ferris.

The Board will be accepting public comment on this proposed rule until November 13, 2018. Electronic comments may be submitted at http://www.regulations.gov.

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