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Total Articles: 9

McDonald’s & The NLRB to Settle a Nearly Four-Year Battle Involving Joint-Employer Status

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).

2018 Omnibus Funding Bill Keeps Government Open, Minus the Critical Joint-Employer Rider

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.

Labor Board Returns to Pre-2015 Joint Employer Standard

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.

It’s Back: NLRB Overturns Specialty Healthcare, Returns to Traditional Community-of-Interest Standard

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.

NLRB’s New Joint Employer Standard Receives Chilly Reception During Court of Appeals Hearing

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.

Seventh Circuit Says Student Athletes Are Not Employees

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.

Doubling Down: NLRB Joint Employer Standard Under Dual Review

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).

NLRB to Consider Whether Students at Private Universities Are “Employees” Covered by the NLRA

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).

House Panel Advances Bill to Clarify Joint Employer Standard

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.