NLRB Overrules Browning-Ferris Industries and Reinstates Prior Joint-Employer Standard
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov
December 14, 2017 - NLRB
Washington, D.C.—In a 3-2
decision,
the National Labor Relations Board today overruled the Boardfs 2015 decision in
Browning-Ferris Industries, 362 NLRB No. 186 (2015)
(g
Browning-Ferrish), and returned to the pre–
Browning Ferris
standard that governed joint-employer liability.
In all future and pending cases, two or more entities will be deemed joint
employers under the National Labor Relations Act (NLRA) if there is proof that
one entity has exercised control over essential employment terms of
another entityfs employees (rather than merely having reserved the right to
exercise control) and has done so directly and immediately (rather than
indirectly) in a manner that is not limited and routine. Accordingly,
under the pre–Browning Ferris standard restored today, proof of
indirect control, contractually-reserved control that has never been exercised,
or control that is limited and routine will not be sufficient to establish a
joint-employer relationship. The Board majority concluded that the
reinstated standard adheres to the common law and is supported by the NLRAfs
policy of promoting stability and predictability in bargaining
relationships.
Applying the reinstated pre–Browning Ferris standard, the Board
agreed with an administrative law judgefs determination that Hy-Brand Industrial
Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint
employers and therefore jointly and severally liable for the unlawful discharges
of seven striking employees.
Chairman Philip A. Miscimarra was joined by Members Marvin E. Kaplan and
William J. Emanuel in the majority opinion. Members Mark Gaston Pearce and
Lauren McFerran dissented in the case.