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National Labor Relations Board Vacates Hy-Brand and Returns to Browning-Ferris Joint Employer Standard

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February 27, 2018

By Chris Johlie and Melissa Sobota

Yesterday, the National Labor Relations Board issued an Order abruptly vacating its decision in Hy-Brand Industrial Contractors. In Hy-Brand, issued in December, the Board overturned the controversial joint employer standards established by the Obama-era NLRB in Browning-Ferris Industries.

We have discussed Browning-Ferris before (see our original alert here). In that case, the Board ruled that joint employer status may be established if an employer exercises indirect control or has the ability to exercise control over employee terms and conditions of employment, even if such control is not exercised. But Browning-Ferris did not last long.

As we have reported, the last week of former NLRB Chairman Miscimarra’s term was marked by a flurry of decisions in which the Board jettisoned several Obama-era cases. In Hy-Brand, the Board overturned Browning-Ferris and returned to the previous, and less expansive, “direct and immediate control” test for determining joint employer status.

The Board’s decision to vacate Hy-Brand was the result of a determination by the Board’s Ethics Officer that newly-appointed Member William Emanuel should not have participated in Hy-Brand because the law firm where he worked before his Board appointment was involved in Browning-Ferris. As a result, Browning-Ferris returns as the joint employer test…for now.

After Chairman Miscimarra’s term ended in mid-December, the Board has operated with four members – Democratic appointees Pearce and McFerran, and Republican appointees Emanuel and Kaplan. President Trump has nominated management attorney John Ring for the vacant NLRB position and his confirmation hearing is scheduled for later this week. Once the Board returns to full strength, whether with Mr. Ring or another Republican appointee, we expect that the Board will re-visit the joint employer test and that the long-term viability of Browning-Ferris’s appears tenuous at best. Until then, however, employers must evaluate any potential joint employer issues under Browning-Ferris.

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