It was expected that the NLRB under the Trump administration would seek to roll back Obama era expansion of pro-union, pro employee rulings including the expansion of the joint-employer test enunciated in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). Therefore, it came as no surprise when in December 2017, in a 3-2 decision, Hy-Brand Industrial Contractors and Brandt Construction Co., 365 MLRB No. 156 (Dec. 14, 2017), the NLRB overruled Browning-Ferris and returned to the pre-Browning Ferris standard whereby, two or more entities will be considered joint employers only where there is proof that one entity has actually exercised control over essential employment terms of another entity’s employees.
What has come as a surprise is that Hy-Brand, would not be the last word from the NLRB on the joint employer issue. On February 26, 2018, the NLRB vacated Hy-brand effectively reinstating Browning-Ferris, after determining that Board Member Bill Emanuel who had participated in the Hy-Brand ruling should have recused himself.
Given that today Browning-Ferris is the law, it is worth revisiting. The most important change brought by Browning was the finding that indirect control or “reserved” authority to control employment terms and conditions was relevant to the joint employer inquiry. The joint employer need not actually exercise that power. The Board also decided that control need not be exercised either directly or immediately, acting through an intermediary could be sufficient.
Finally, for those out there thinking, “so what, my case would not be before the NLRB”, a word of caution. Employees seeking to impose liability using the joint employer concept may persuasively cite to the NLRB “indirect” control standard in state and federal courts, and administrative agencies. Therefore, while easy to do, employees, employers, and practitioners should not overlook important rights, responsibilities and standards pronounced by the NLRB that may be used as the standard in other forums.