Print/PDF

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.

News

  • Look In the Sky: It’s a Bird, It’s a Plane, It’s OSHA!Read more

Events

  • May 6-10 is the 6th Annual National Safety Stand-Down To Prevent Falls in ConstructionRead more

Newsletter Signup

Signup here to be added to receive our quarterly publications Safety Sense, The Employer, and Comp Connection, as well as webinar and event invitations.