Labor Board Seeks Certainty in Reverting to Decades-Old Employment Standard
Two years ago in Browning-Ferris Industries the National Labor Relations Board (NLRB) established a new standard for evaluating joint employer relationships by finding that two entities are joint employers even when they have never exercised joint control over essential terms and conditions of employment, and any joint control is not “direct and immediate.” The two entities could still be joint employers based on either the mere existence of “reserved” joint control, indirect control, or control that is “limited and routine.” Not so anymore. In a year end decision marking a more management-friendly NLRB, the Browning-Ferris standard was called “a distortion of common law,” “ill-advised as a matter of policy” and an impediment to the NLRB’s mission to foster stability in labor-management relations. Five Hy-Brand employees and two employees of a second entity were discharged after engaging in work stoppages aimed at compensation and workplace safety concerns. In a lengthy and sometimes scathing opinion, the NLRB found a joint employment relationship but dismantled the Browning-Ferris test.