Browning-Ferris Joint-Employer Standard Revived

NLRB 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
On February 26, the NLRB vacated its recent decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (Dec. 14, 2017), because of Board Member William Emanuel’s participation in the decision. The NLRB Inspector General concluded that Emanuel should not have cast a vote in the decision because his former law firm had represented one of the unsuccessful litigants in Browning-Ferris Industries, 362 NLRB No. 186 (2015), the decision that Hy-Brand overturned. Emanuel had voted with the 3-2 majority.

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