By: Melanie M. Dunajeski; Drewry Simmons Vornehm, LLP
One of the most contentious decisions of the Obama Era NLRB was the Browning-Ferris decision which adopted a broad ranging definition of “joint employer” that permitted indirect control to be the basis for imposing liability on employers under the laws enforced by the National Labor Relations Board. Browning-Ferris overruled long standing prior decisions which required that an entity exercise control “directly, immediately and not in a limited and routine manner”. Overturning the Browning-Ferris standard was a stated priority of the Trump Whitehouse, and action was expected to occur in the first applicable dispute to reach the NLRB following Trumps’ appointment of two members of the Board swinging the Republican majority to 3-2. However, in a move that surprised most observers, the NLRB on December 14th, 2017 chose an unlikely case to reject the Browning-Ferris standard. In Hy-Brand Industrial Contractors and Brandt Construction Company, none of the parties had challenged the use of the Browning Ferris standard, and indeed, even when the “direct control” standard was used in place of the “indirect control” standard to evaluate whether joint employment existed, the NLRB determined that it did. Hence, other than using the decision as a vehicle to reject the Browning-Ferris “indirect control” standard, the decision did not change the outcome for Hy-Brand and Brant Construction as joint employers. Notably, the Browning-Ferris decision is currently on review to the D.C. Circuit which could now send that case back to the NLRB for further proceedings. Also, legislation introduced and passed by the House in November to reverse Browning-Ferris has stalled in the Senate. It remains to be seen how all of the administrative, judicial and legislative efforts to roll back the “indirect control” standard will play out, but it does seem certain that through one method or another, employers will return to the “direct control” test.
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