The drama involving the National Labor Relations Board’s precedent-busting 2015 joint employer decision continues.
Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), dramatically changed the playing field for employers who rely on nontraditional workforces. The NLRB transformed its prior joint employment standard in Browning-Ferris into a two-part test that permits a finding of joint employer where “control” is direct, indirect, or even a reserved right to control, whether or not that right is ever exercised.
As with any hotly contested decision, the parties appealed Browning-Ferris to the U.S. Court of Appeals for the District of Columbia Circuit and participated in oral argument on March 9, 2017. However, before the Court of Appeals could issue a decision, the Board handed down Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), which expressly overruled Browning-Ferris.
Five days after issuing Hy-Brand, the Board petitioned the Court of Appeals to remand Browning-Ferris to the Board for reconsideration in light of its new precedent. The Court granted the Board’s request the same day. On January 4, 2018, Intervenor, Teamsters Local 350 asked the Court to reconsider its decision to remand, raising procedural arguments, and asserting that Board Member William Emanuel should have recused himself from the Hy-Brand decision because his former law firm represented one of the employers involved in the Browning-Ferris proceedings. The Court denied the Teamster’s Motion without comment. Most Board watchers thought that would be the end of the Browning-Ferris litigation.
On February 26, a three-member Board panel consisting of Chairman Marvin Kaplan and Members Lauren McFerran and Mark Gaston Pearce, vacated Hy-Brand based on a report issued by the NLRB’s Inspector General finding that Emanuel should have recused himself from participation in deciding Hy-Brand. The Order resulted in “the overruling of the Browning-Ferris decision . . . [being] . . . of no force or effect.”
Now that Browning-Ferris lives again, the Board has asked the Court to reconsider it.
It is widely anticipated that the Court will grant the Board’s request and reconsider the merits of the Browning-Ferris appeal; however, while less likely, the Court may issue a decision on Browning-Ferris soon. Once fully constituted with a Republican majority, the Board inevitably will overturn Browning-Ferris again and trigger another request to remand Browning-Ferris to the Board.
We will continue to monitor this matter and will keep you apprised as the Court (and the Board) considers the fate of Browning-Ferris.