Total Articles: 47
Ogletree Deakins • September 20, 2018
On September 14, 2018, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking (NPRM) in the Federal Register addressing how it will determine whether an employer is a joint employer of another entity’s employees. The NPRM presents the potential for a welcome change for employers, many of which have struggled with the strict joint employment standard imposed over the last few years. Here are answers to some frequently asked questions about the NPRM and its practical impacts on employers below.
FordHarrison LLP • September 17, 2018
Executive Summary: On September 14, 2018, the National Labor Relations Board (NLRB) published a proposed new regulation to establish the standard for determining when two businesses are joint employers of a group of employees. The proposed rule, if adopted, would make it more difficult for businesses to be found to be joint employers under the National Labor Relations Act (NLRA).
Franczek Radelet P.C • September 17, 2018
On Thursday, September 13, the National Labor Relations Board (the “Board”) signaled its intent to return to its pre-Obama Board test for establishing joint-employer status. The Board issued a Notice of Proposed Rulemaking in the Federal Register proposing to establish a standard whereby “an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.”
Phelps Dunbar LLP • September 17, 2018
On Friday, September 14, 2018, the National Labor Relations Board (NLRB) published a proposed regulation. The regulation aims to establish the standard for determining whether two employers are joint employers of a group of employees under the National Labor Relations Act. The NLRB’s proposed rule will affect many businesses that operate under a franchise model, including but not limited to the fast food industry.
Goldberg Segalla LLP • September 17, 2018
Notice of the National Labor Relations Board’s (NLRB) highly anticipated proposed new rule on establishing joint-employer status under the National Labor Relations Act (NLRA) was published in the Federal Register on September 14, 2018 (and is available here).
Fisher Phillips • September 16, 2018
In a move that has been anticipated for several months, the National Relations Labor Board today published a proposed rule that would fundamentally alter the definition of joint employment, making it more difficult for businesses to be held legally responsible for alleged labor and employment law violations by staffing companies, franchisees, and other related organizations. The rule, if eventually adopted, would also limit the ability of employees from affiliated companies to join together to form unions.
Ogletree Deakins • September 13, 2018
Approximately three years after the National Labor Relations Board (NLRB) turned its decades old joint-employer standard on its head in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, on September 13, 2018, the Board proposed a rule to correct that mistake and return balance to the labor-management landscape. The Board does not often engage in rulemaking and usually makes policy through adjudication. At the same time, issuing a regulation on this vital matter has the advantage of providing long-lasting stability and predictability for all stakeholders.
Littler Mendelson, P.C. • September 13, 2018
he National Labor Relations Board (NLRB) has announced it is issuing a Notice of Proposed Rulemaking (NPRM) to redefine the standards for determining whether two or more employers are joint employers under federal labor law. The proposed rule was expected following statements in June by NLRB Chairman John Ring that the board was planning to engage in the federal rulemaking process in order to consider and address joint employment issues in a comprehensive manner.
Fisher Phillips • June 11, 2018
In a rare procedural move that caught many by surprise, the National Labor Relations Board announced on Wednesday that it will soon start the rulemaking process to clarify the current joint employment standard. Perhaps frustrated by uncertainty resulting from the recent reversal of a Board decision on the topic and the seemingly stalled litigation sitting at the D.C. Circuit, Chairman John Ring said that he hopes NLRB rulemaking would bring resolution to this matter “as soon as possible.”
Franczek Radelet P.C • March 25, 2018
On March 19, 2018, McDonald’s reached a proposed settlement with the National Labor Relations Board (the “Board”) to resolve the outstanding litigation concerning alleged labor law violations by McDonald’s franchisees. We previously reported on this case in both 2014 and 2015, stating that the pertinent issue for employers was whether McDonald’s USA should be considered a joint employer with its franchisees, making it liable for their labor law violations. Since the inception of this matter, the Board has changed the standard as to what constitutes a joint employer relationship at least twice. (See our alerts here and here).
Ogletree Deakins • March 25, 2018
On March 23, 2018, the last day before a potential government shutdown, Congress passed and the president is expected to sign a massive $1.3 trillion omnibus spending bill to fund the federal government through fiscal year (FY) 2018. Although traditionally legislative “riders” to such omnibus spending bills are sometimes added for legislation that is unable to pass Congress as stand-alone bills, this year’s bill did not include the heavily lobbied joint-employer fix to reverse the National Labor Relations Board’s (NLRB) controversial Browning-Ferris Industries decision, which had been a priority for the business community.
Phelps Dunbar LLP • February 28, 2018
In a 3-0 order the National Labor Relations Board (NLRB) vacated its December 2017 decision in Hy-Brand Industrial Contractors. The Hy-Brand case had reversed the Board’s controversial decision involving Browning-Ferris Industries of California, Inc. from 2015 (“BFI”), which had arguably expanded the circumstances under which an employer could be found as a “joint employer” with its contractors. The withdrawal of Hy-Brand followed ethical scrutiny into whether new member, William J. Emanuel, should have participated in the decision based on an Inspector General report regarding member Emanuel’s previous law firm’s work for BFI. In so doing, it returned to the “share or codetermine” test for determining joint-employer status announced in BFI. Most importantly, direct and immediate control over terms and conditions of employment would no longer be a prerequisite to joint-employer status. Rather, under the re-instated “traditional” test stating:
Ogletree Deakins • February 28, 2018
In December 2017, the National Labor Relations Board (NLRB) issued a number of important decisions prior to the end of then chairman Philip Miscimarra’s term. One of those important decisions was Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). Hy-Brand overturned the Board’s controversial decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), which imposed new standards for joint-employer determinations. Browning-Ferris was the law of the land for just two years before being overturned by Hy-Brand, and now Hy-Brand has been vacated just two months after it was issued.
Franczek Radelet P.C • February 27, 2018
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.
Fisher Phillips • February 26, 2018
In what employers are sure to hope is just a temporary—but stinging—setback, the National Labor Relations Board today vacated its December ruling that had freed employers from having to deal with an unworkable and expansive legal test for determining whether an entity was considered a joint employers. Because of allegations that one of the three-member majority was ethically compromised due to his former law firm’s involvement in a related case, the Board decided that it would pull the new legal test and instead revert to the troubling and controversial standard that had been in place since August 2015. What do employers need to know about this development?
Jackson Lewis P.C. • February 26, 2018
In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled.
Jackson Lewis P.C. • December 27, 2017
In Hy-Brand Industrial Contractors Ltd., 365 No. 156 (Dec. 14, 2017), the National Labor Relations Board overturned its standard for determining joint employer status under the National Labor Relations Act established in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). Hy-Brand will be applied retroactively to any matter currently pending before the Board, as well as to all new matters.
Ogletree Deakins • December 27, 2017
On December 15, 2017, a divided National Labor Relations Board (NLRB) issued a significant decision in PCC Structurals, Inc., 365 NLRB No. 160, overturning the controversial “overwhelming community-of-interest” test from Specialty Healthcare and its progeny. PCC Structurals thus returns the Board’s “appropriate unit” policy to the traditional community-of-interest standard used for the majority of the NLRB’s history. As a result of overturning Specialty Healthcare, the Board will focus again on not only the commonality between individuals within a petitioned-for unit but also the commonality of those employees with others outside the petitioned-for unit. This focus will likely result in more findings that various narrowly-drawn units are not appropriate and thus lessen the number of “micro-units” ordered by the Board’s regional directors.
FordHarrison LLP • December 17, 2017
Executive Summary: The National Labor Relations Board (“NLRB” or “Board”) has reversed the controversial joint employer standard created by the Obama Board in the Browning-Ferris Industries of California, Inc. ("BFI") decision, restoring the traditional joint employer test that was in place for decades prior to BFI. On December 14, 2017, the NLRB issued its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) (“Hy-Brand”) in which a 3-2 majority overturned the controversial BFI decision.
Franczek Radelet P.C • December 17, 2017
Just two days ago, we noted that the winds of change are blowing at the NLRB. Yesterday, those winds picked up considerable force as the newly-constituted NLRB dismantled two earlier cases that were the subject of extensive employer criticism.
Phelps Dunbar LLP • December 17, 2017
The newly composed, Republican-majority NLRB has restored the more employer-friendly test for determining joint employer status. As part of a trend we predicted earlier this week, the decision overrules the Obama-Era Board’s 2015 decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015). As a result, “direct and immediate control” is once again a prerequisite for finding joint employers.
Fisher Phillips • August 28, 2017
In a ruling sure to leave businesses and gig economy companies crying foul, the National Labor Relations Board concluded that workers producing electronic video display content for the NBA’s Minnesota Timberwolves were misclassified as independent contractors and are actually employees. The Board’s 2-1 decision, announced on August 18, is a setback for businesses seeking certainty in their classification decisions, and is a reminder that the current roster of Labor Board members remains decidedly pro-worker and pro-union. Until the Board is comprised of a majority of Republican appointees, businesses need to be wary in their approach to classification situations (In re Minnesota Timberwolves Basketball LP).
Jackson Lewis P.C. • March 20, 2017
The National Labor Relations Board’s new, expanded “joint employer” standard faced sharp criticism during oral argument at the United States Court of Appeals for the District of Columbia Circuit.
Franczek Radelet P.C • December 08, 2016
Back in August, the National Labor Relations Board threw the higher education community a curve ball ruling that student assistants at Columbia University were employees under the National Labor Relations Act, and were therefore entitled to organize a union. (For more information see our alert on the case.) An obvious question left unanswered by the Columbia University case was whether and under what circumstances students may also be entitled to minimum wage and overtime under the Fair Labor Standards Act. On Monday, December 5, the Seventh Circuit Court of Appeals weighed in on at least part of that issue, holding that two former University of Pennsylvania athletes were not employees of either the University or the NCAA under the FLSA. Berger v. National Collegiate Athletic Association, et al.
Jackson Lewis P.C. • April 25, 2016
Whether the National Labor Relations Board’s recently articulated joint employer standard can withstand judicial scrutiny is about to be tested. Browning Ferris Industries of California has filed a petition for review (in the United States Court of Appeals for the District of Columbia Circuit) of the NLRB’s bargaining order, asking the Court to deny enforcement of the Board’s Order requiring the company to bargain with the union based on an election conducted pursuant to the agency’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015).
Jackson Lewis P.C. • March 09, 2016
As expected, Browning-Ferris Industries has appealed to the United States Court of Appeals (in Washington, D.C.) from the National Labor Relations Board’s ground-breaking decision finding that BFI, as a joint employer of employees that BFI used from Leadpoint Business Services, unlawfully refused to bargain with Teamsters Local 350. BFI’s “Petition for Review” was filed in the District of Columbia Circuit.
Ogletree Deakins • February 23, 2016
In its continuing efforts to rewrite federal labor law to benefit unions, the National Labor Relations Board (NLRB) has again narrowed the definition of “supervisor” under Section 2(11) of the National Labor Relations Act (NLRA). In G4S Government Solutions, Inc., 363 NLRB No. 113 (February 10, 2016), the Board concluded that nuclear power plant security lieutenants were not supervisors under the NLRA. Because supervisors are specifically excluded from the definition of “employee” under the Act, supervisors may not organize and have a duty of loyalty to their employers. In light of unions’ efforts to expand bargaining units, the NLRB has continued to find that individuals are not supervisors under the NLRA, even where they appear to meet the historical statutory criteria.
Franczek Radelet P.C • January 26, 2016
Union organizing directed at religious college and university faculties has gained momentum since the National Labor Relations Board (“Board”) issued its decision in Pacific Lutheran University (“PLU”) in 2014. In PLU, the Board adopted a new, two-part standard for determining whether to assert jurisdiction over faculty at religiously-affiliated colleges and universities. Under the PLU standard, the Board will assert jurisdiction unless 1) the college or university holds itself out as providing a religious educational environment; and 2) the college or university holds the petitioned-for faculty out as performing a specific role in creating or maintaining the university’s religious educational environment.
FordHarrison LLP • January 25, 2016
Executive Summary: The Fourth Circuit recently upheld a finding of the National Labor Relations Board (NLRB) that four employees were not supervisors, even though each employee oversaw the daily work of between 22 and 40 workers. The Fourth Circuit acknowledged that there was some evidence of supervisory authority but deferred to the NLRB's conclusions that the employees at issue were not supervisors. See Pac Tell Grp., Inc. v. NLRB, No. 15-1111, unpublished (Dec. 23, 2015).
Ogletree Deakins • January 15, 2016
Whether graduate student assistants at private universities are “employees” covered by the National Labor Relations Act (NLRA) might soon be taken up (again) by the National Labor Relations Board (NLRB).
Jackson Lewis P.C. • January 15, 2016
The NLRB’s landmark Browning-Ferris Industries of California, Inc. decision, creating a new joint employer standard, has taken another step toward judicial review in a U.S. Circuit Court of Appeals.
Littler Mendelson, P.C. • October 29, 2015
Following a series of congressional hearings on the National Labor Relations Board's Browning-Ferris decision, the House Committee on Education and the Workforce voted on Wednesday to advance a bill that would effectively reverse the Board's action in that case. The Committee voted 21-15 along party lines to send the Protecting Local Business Opportunity Act (H.R. 3459) to the House floor. This legislation rejects the new joint employer standard the Board adopted in Browning-Ferris, and clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers for liability purposes under the National Labor Relations Act.
Jackson Lewis P.C. • September 17, 2015
Two days after returning from a scheduled congressional recess, senior Republican lawmakers introduced the first legislative challenge to the NLRB’s new joint employer standard, which was handed down last month in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
XpertHR • September 17, 2015
The National Labor Relations Board's expansive definition of "joint employer" in its Browning-Ferris decision could spark expanded unionization efforts. Longtime Boston labor law attorney Howard Bloom explains why and discusses other ramifications.
Vedder Price • September 02, 2015
On August 27, 2015, the National Labor Relations Board (NLRB) announced the anticipated changes to its rules for holding companies liable as "joint employers." For employers who utilize temporary labor or who have outsourced work functions to third parties but retained some degree of oversight or control over those third parties, the decision creates new risks that they will be drawn into union bargaining relationships and labor disputes that had been the sole responsibility of their outside labor providers.
XpertHR • September 01, 2015
The National Labor Relations Board (NLRB) has broadened the definition of "joint employer" in a landmark ruling that could make it easier for unions to negotiate on behalf of workers at companies that rely on contractors and franchisees.
FordHarrison LLP • August 31, 2015
Executive Summary: On August 27, 2015, the National Labor Relations Board (NLRB or Board) issued its long-awaited decision in Browning-Ferris Industries (BFI) substantially changing and expanding the standard for finding a joint-employer relationship under the National Labor Relations Act (NLRA).
Franczek Radelet P.C • August 31, 2015
In a landmark ruling yesterday, the National Labor Relations Board (the Board) dramatically revised its standard for determining when two businesses constitute “joint employers” for purposes of collective bargaining and liability under the National Labor Relations Act (the Act). This decision may have far-reaching implications for businesses nationwide.
Jackson Lewis P.C. • August 31, 2015
A sharply divided National Labor Relations Board has announced a new standard for determining joint employer status under the National Labor Relations Act. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). One of the most significant decisions issued by the Board in recent years, it is likely to impact the labor relations and business relationships of many companies.
Phelps Dunbar LLP • August 31, 2015
On August 27, 2015, in Browning Ferris Industries of California, Inc., the National Labor Relations Board (the “Board”) redefined the standard for determining joint-employer status, rejecting its 30-plus-year-old standard. In the ruling, it held Browning-Ferris Industries (“BFI”), a national recycling and sanitation company, was a joint employer of a crew of workers provided by a staffing agency. Thus, according to the Board, BFI now is responsible for bargaining obligations and potentially for unfair labor practices under the National Labor Relations Act (the “Act”). The decision is a significant modification to existing Board precedent and should be evaluated for its potential impact in any workplace using contract labor and for its impact beyond the Act.
Goldberg Segalla LLP • August 31, 2015
In a 3-2 decision along party lines on Thursday, the National Labor Relations Board (NLRB, or Board) dealt a significant blow to fast food restaurants and other businesses that rely on the franchisee model as well as those organizations that utilize staffing agencies to supply their workers. In this highly anticipated decision, the NLRB overturned more than 30 years of established law by significantly expanding its joint employer standard. The Board Majority characterized its former longstanding joint employer analysis as “out of step with changing economic circumstances,” specifically noting the growth in contingent employment relationships, as well as that more than 2.87 million of the nation’s workers were employed through employment agencies in August 2014. If this decision survives on appeal, employers that currently rely upon staffing agencies will be forced to reevaluate their business models for obtaining labor, and franchisors must decide whether to assert more or less control over their franchisees.
Littler Mendelson, P.C. • August 28, 2015
On August 27, 2015, the last day of Harry Johnson, III's term as a Board member, the National Labor Relations Board issued its long-awaited decision in Browning-Ferris Industries of California, Inc.1 The Board voted 3-2 to change its joint employer standard with Chairman Pearce, Member Hirozawa and Member McFerran representing the majority and Member Miscimarra and Member Johnson dissenting. The question before the Board was whether Browning-Ferris Industries (BFI) was a joint employer with Leadpoint, a staffing services company, in a union representation election covering Leadpoint's employees.2 The Board concluded that BFI and Leadpoint were joint employers under the representation petition filed by Teamsters Local 350. In finding that BFI was a joint employer with Leadpoint, the Board relied on BFI's indirect control and reserved contractual authority over essential terms and conditions of employment of the Leadpoint-supplied employees.
Fisher Phillips • August 28, 2015
In a 3-2 decision, the National Labor Relations Board (NLRB) announced yesterday a broad new standard for determining whether two businesses are “joint employers” for purposes of collective bargaining.
Ogletree Deakins • August 28, 2015
Overturning decades of precedent, the National Labor Relations Board (NLRB), on August 27, 2015, issued its long-awaited decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (August 27, 2015). The decision establishes a new standard for determining when two entities are a single “joint employer” over a group of workers.
Littler Mendelson, P.C. • August 18, 2015
The National Labor Relations Board continues the string of controversial moves in its unfair labor practice cases against McDonald’s. In December 2014, the NLRB’s General Counsel filed thirteen complaints naming the franchisor, McDonald’s USA, as a joint employer for alleged unfair labor practices of various local franchisees. On August 14, 2015, the Board issued a decision affirming an Administrative Law Judge’s decision denying McDonald’s USA, LLC’s motion for a bill of particulars.1 A bill of particulars would have required the General Counsel to specify the particular facts and law that support its theory of joint employer liability.
Goldberg Segalla LLP • September 03, 2013
Last month, the Sixth Circuit vacated the National Labor Relations Board’s determination ordering the operator of the Golden Living Center Nursing Home to bargain with a unit that was elected by registered nurses (RN). Through its decision in GGNSC Springfield, Corp. v. NLRB, ___F.3d ___, 2013 U.S. App. LEXIS 13472 (6th Cir. 2013), the Sixth Circuit determined that the RNs constituted supervisors under the National Labor Relations Act and were therefore not permitted to unionize, because they were authorized to issue employee memoranda to certified nursing assistants (CNA). The Sixth Circuit determined that the issuance of employee memoranda constituted an act of discipline and required the RNs to exercise independent judgment in making a determination as to whether to issue a memoranda or to give a verbal counseling.
ManpowerGroup • June 26, 2012
While employers breathlessly await the health care ruling the Court weighs in on two issues affecting the workplace