Total Articles: 25
Jackson Lewis P.C. • February 18, 2019
The National Labor Relations Board (NLRB) has held that in deciding whether an individual is an independent contractor or an employee, it will return to focusing on the extent to which the arrangement between the ostensible employer and the alleged employee provided an “entrepreneurial opportunity” to the individual, overruling a 2014 Board decision. SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019).
Littler Mendelson, P.C. • January 02, 2019
On December 28, 2018, a divided Court of Appeals for the District of Columbia Circuit upheld portions of an Obama-era standard for determining “joint employer” status under the National Labor Relations Act (NLRA), ultimately sending the case back to the National Labor Relations Board for clarification and reassessment.
Ogletree Deakins • January 02, 2019
On December 28, 2018, the D.C. Circuit issued its long-awaited decision regarding the National Labor Relations Board’s (NLRB) 2015 decision in Browning-Ferris Industries. Rather than bring clarity to the uncertainty and confusion that the NLRB had created with that 2015 decision—which overturned more than 30 years of precedent defining what entities would be deemed “joint employers” under the National Labor Relations Act—the D.C. Circuit exacerbated both. The extent of the confusing nature of the D.C. Circuit’s decision is illustrated by the conflicting headlines of various national news publications. One headline reported the court had “upheld” the NLRB’s Browning-Ferris standard. Many others reported that the court had “nixe[d]” it.
Jackson Lewis P.C. • January 02, 2019
In a long-awaited decision, the D.C. Circuit Court of Appeals has upheld the controversial joint-employer standard articulated by the National Labor Relations Board in its 2015 Browning-Ferris decision. Browning-Ferris Industries of Calif., Inc. v. NLRB, D.C. Cir., No. 16-1028, 12/28/18.
Fisher Phillips • December 30, 2018
With one final jolt to end the year, a federal appeals court ruled today that the impractical joint employer test originally adopted by the Obama-era National Labor Relations Board in 2015 was properly enacted and therefore remains in effect (Browning-Ferris Industries v. NLRB). This doesn’t change much for employers’ day-to-day operations, as the Trump Labor Board’s efforts to overturn the controversial standard ran into a roadblock in early 2018 and the standard has effectively been in place for the better part of three years now.
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.
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.
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.
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 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.
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.
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.
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).
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.