Two years after the National Labor Relations Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), which overturned 30 years of precedent, 57 members of Congress, mostly Republicans, supported by business owner advocacy group Workforce Fairness Institute, are urging the Subcommittee on Labor, HHS & Education Committee on Appropriations “to include a one-year hold on the NLRB’s harmful and confusing definition of joint employers [in Browning-Ferris] in the FY18 Labor, Health and Human Services, Education, and Related Agencies Appropriations legislation.” In a letter dated April 5, 2017, to the subcommittee Chairman and Ranking Member, the 57 legislators cited a report by the U.S. Chamber of Commerce that warned the decision will result in decreased business values, increased operational and legal costs, less growth, and fewer jobs.

The NLRB had ruled a company could be held liable for the management and actions of workers employed by another employer, even if the company does not directly control those employees. For example, under the Browning-Ferris standard, liability for actions taken by individual franchisees could be imputed to franchisors even if they do not directly supervise or control the franchisee’s employees. Similar liability could be imposed upon contractors in connection with a subcontractor’s employees.

Browning-Ferris has been appealed to the U.S. Court of Appeals for the D.C. Circuit; a decision should be issued during 2017.

A one-year hold on the NLRB joint employers standard likely will require the support of 60 Senators in order to avoid a filibuster, a difficult task in the current Congress. More likely is reversal of Browning-Ferris by a fully constituted NLRB with a 3-2 pro-business majority after the two existing vacancies are filled by President Donald Trump’s nominees.

Jackson Lewis attorneys are available to answer questions about this and other legal developments.

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Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.