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.
Articles Discussing Employee and Employer Coverage Under The NLRA.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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).
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).
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.
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.
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.