On Dec. 28, 2018, the D.C. Circuit Court of Appeals ruled in the 2015 Browning-Ferris Industries v. National Labor Relations Board case, which greatly expanded joint employer liability under the National Labor Relations Act. The divided court upheld portions of the Obama-era standard for determining “joint employer” status and remanded the case back to the NLRB for further consideration.
According to an article written by ABC’s General Counsel, Littler Mendelson, P.C., “The court of appeals reviewed the Board’s Browning-Ferris standard, examining specifically whether an employer’s “right to control” another company’s employees, or its “indirect” control over them, are appropriate factors in assessing joint-employer status. In a 2-1 decision, the court held that such factors could be probative of joint-employer status in a fact-based, case-by-case analysis. Importantly, the court expressly declined to consider whether the mere unexercised “right to control” another company’s employees, standing alone, would be sufficient to establish a joint-employment relationship.” A more detailed analysis of the court’s decision is included in the Littler article.
Unfortunately, the court’s decision means continued confusion for employers. Additionally, the decision was issued as the NLRB conducts its rulemaking proceeding on the 2015 joint employer standard. ABC plans to submit comments on the NLRB proposal, which are due Jan. 14.
ABC National will continue to keep members up to date on this issue in Newsline.
This article is intended for informational purposes only and does not constitute legal advice or opinion.