The NLRB Reverts Back to the Browning-Ferris Joint Employer Test

Since August 27, 2015, employers have been grappling with the new NLRB standard regarding joint employment. The Browning-Ferris v. NLRB decision established that a joint-employer relationship will be found if the alleged joint-employers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not exercised. The Browning-Ferris decision was appealed and the U.S. Court of Appeals for the D.C. Circuit heard arguments in the Spring of 2017.


While Browning-Ferris was pending, the Hy-Brand Industrial Contractors Ltd. & Brandt Construction Co. case came before the NLRB for a decision on the joint employer question. On December 14, 2017, the NLRB voted 3-2 to overturn the joint employer test set forth in Browning-Ferris, reverting back to the previous standard which had been in effect for 30+ years.  The board decided Hy-Brand along party lines, with President Trump’s recent appointee, Bill Emmanuel casting the deciding vote.  Upon issuing this decision, the NLRB asked the D.C. Circuit to remand the Browning-Ferris case back to the board, which the court agreed to do. We previously covered this decision here.

However, on February 26, 2018, the NLRB unanimously vacated the Hy-Brand decision because it deemed there was a potential conflict of interest tainting the decision. Shortly after the Hy-Brand decision, a motion for reconsideration was filed requesting Mr. Emmanuel recuse himself because his former law firm, Littler Mendelson, represented a party in the Browning-Ferris case.  The NLRB inspector general, David Berry, issued a report finding that Bill Emmanuel should not have voted in the Hy-Brand case because it was linked to the Browning-Ferris case. On February 26, 2018, a three-member panel of the board granted reconsideration and vacated the Hy-Brand decision for further proceedings before the board.  The NLRB has since requested the D.C. Circuit to recall the Browning-Ferris case in light of this latest development.


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