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NLRB must backtrack on joint employment

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in Employment Law,Human Resources

Browning-Ferris is back! The National Labor Relations Board on Feb. 26 vacated a December 2017 ruling—Hy-Brand Industrial Contractors—that overturned the controversial Browning-Ferris decision. That ruling, from 2015, greatly expanded the definition of a “joint employer” to include entities that exert even indirect control over another organization’s employees.

The reason for the reversal: The NLRB’s inspector general found that board member William Emanuel should not have participated in the Hy-Brand case because his former law firm, Littler Mendelson, was involved in the original Browning-Ferris case.

Business interests hated Browning-Ferris. They hailed Hy-Brand for returning the joint employer definition to one that prevailed for decades: Only an entity that exercises “direct and immediate” control over essential employment terms can be considered a joint employer.

Democrats in the House and Senate immediately called for hearings on Emanuel’s conflict-of-interest. Republicans called for the Senate to take up legislation, already passed in the House, that would permanently overturn Browning-Ferris.

Meanwhile, labor unions demanded that a federal judge in New York City reject an NLRB petition to settle an ongoing lawsuit that seeks to use the Browning-Ferris standard to link McDonald’s Corp. to franchisees accused of unfair labor practices. (See “NLRB ready to abandon suit naming McDonald’s a joint employer.”)

Bottom line: For now, Browning-Ferris again defines joint employment.

Learn more about the joint employer standard at www.theHRSpecialist.com/browning.

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