On January 3, 2018, we reported that the National Labor Relations Board (“NLRB”) in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (NLRB 2017), had overturned Browning-Ferris Industries, 362 NLRB No. 186 (NLRB 2015), a case that had greatly broadened the reach of the joint employment test. The NLRB now has vacated Hy-Brand because of a determination by the NLRB’s Designated Agency Ethics Official that NLRB member Bill Emanuel should have been disqualified from participating in the matter.
With the decision to vacate, the earlier ruling from Browning-Ferris has been reinstated, and the broad joint employment test will again be used. Prior to the 2015 decision in Browning-Ferris, two employers could be found to be joint employers only if they each exercised actual control over the employees. Under Browning-Ferris, two employers will be found to be joint employers of the same employees if they “share or codetermine those matters governing the essential terms and conditions of employment.” Terms and conditions of employment include such things as wages, schedules, job duties, and break times. Under this decision, as long as one employer has the ability to make or influence decisions concerning the terms and conditions of employment, whether or not that employer exercises that ability, a joint employer relationship may be found.
The reinstatement of the Browning-Ferris decision means that, once again, certain business arrangements such as franchises will be more likely to raise joint employer questions. There currently is a bill pending in Congress, the Save Local Business Act, which would mandate that a joint employer relationship under the National Labor Relations Act (“NLRA”) would be found only when the entity directly, actually, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment, such has hiring, firing, determining rates of pay and benefits, day-to-day supervision, assigning work, and handling employee discipline. If this bill passes, fewer arrangements would be found to be joint employer relationships under the NLRA. While the bill has passed the House, it has not been voted on in the Senate.
What Does This Mean For You? At this time, the Browning-Ferris broad view of joint employer status is the law of the land. That means more companies who may have potential control over employees could be held liable for unfair practices, and could be subject to needing to bargain with unions with any employers with whom they share joint status.
If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or at firstname.lastname@example.org.