NLRB Asks Appellate Court to Reconsider Joint Employer Case

Author: Michael Cardman, XpertHR Legal Editor

March 6, 2018

Less than two weeks after the National Labor Relations Board (NLRB) surprised employers by resurrecting its Browning-Ferris ruling - which had established a more expansive standard for determining whether two or more employers are joint employers under federal labor law - it has asked a federal appellate court to review the case once again.

The NLRB's deputy associate general counsel filed a motion requesting that the United States Circuit Court of Appeals for the District of Columbia Circuit take Browning-Ferris back under consideration in light of "exceptional circumstances."

If the DC Circuit grants this motion and continues proceedings, it could either uphold the Browning-Ferris ruling or overturn it, thereby opening the door for the court or the NLRB to issue a new joint employment standard.

The NLRB's motion marks the latest development in a case that has been full of twists and turns. In December, the NLRB issued its Hy-Brand Industrial Contractors decision that overturned Browning-Ferris and restored a decades-old standard under which an employer must, among other things, exercise "direct and immediate" control over shared employees to be considered a joint employer. After Browning-Ferris was overturned, the DC Circuit sent the case back to a lower court to decide in light of the Hy-Brand ruling.

But on February 9, the NLRB's inspector general said that one of the board's Republican members, William Emmanuel, should have been disqualified from taking part in Hy-Brand because his law firm had represented one of the parties in Browning-Ferris. This opened the door for a three-member panel comprising two Democrats and one Republican to vacate Hy-Brand, thereby restoring Browning-Ferris.

However, NLRB Deputy Associate General Counsel Linda Dreeben argued in the motion that these "unique circumstances" justify having the appellate court decide whether to enforce or deny enforcement of the NLRB's original Browning-Ferris decision.