Browning-Ferris Joint-Employer Standard RevivedNLRB Compelled to Vacate December 2017 Decision That Overturned Browning-Ferris; NLRB Inspector General Found that Board Member William Emanuel Should Not Have Cast a Vote February 27, 2018
Hy-Brand was welcomed by employers because it overturned the joint-employer test adopted during the Obama administration in Browning-Ferris, which had held that a joint-employer relationship may be found merely based on the putative joint employer’s right to control terms and conditions of employment, irrespective of whether such control is directly exercised or exercised at all. The Hy-Brand decision returned Board precedent to the original test that Browning-Ferris had upended – i.e., that two entities may be considered joint employers only if each exercises “direct and immediate” control over the terms and conditions of employment. View our discussion of the NLRB’s decision in Hy-Brand.
The Board’s Order reinstates the Browning-Ferris joint-employer standard for the time being. View our memorandum on the Browning-Ferris decision.