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NLRB Reported to Be Considering New Option to Overturn Browning-Ferris


As readers are likely aware, the President Obama era National Labor Relations Board (‘NLRB’) issued a decision, Browning-Ferris, which was met with much disdain from pro business groups and employers alike.  Much of the criticism focused on the new, relaxed joint employer standard that was created which held that employers could be liable for labor violations of a contractor or franchisee if the employer exercised direct or indirect control.  Prior to Browning-Ferris, the joint employer standard had been only direct control.  However, once Republican appointed Board members gained a 3 - 2 majority vote of the NLRB, a December 2017 decision was issued, Hy-Brand, which reversed Browning-Ferris and reverted the joint employer test back to its orignial standard.

That ‘victory’ for pro-business groups and employers was short lived, however, after the NLRB vacated its decision in Hy-Brand in February on the grounds that one of the Republican appointed Board members, William Emanuel, should have recused himself from the decision making process because of an apparent conflict of interest.

Are you following along so far?

After the Board vacated its decision in Hy-Brand, attention has quickly turned to whether (or more likely when) the Board will find another case in which it can issue a decision to reverse Browning-Ferris.  There has been some concern among NLRB observers that the Board might again struggle to find a case in which at least one of its newly appointed Board members would not have to recuse themselves.  If that were to happen, a Board decision would likely be 2 - 2...which means Browning-Ferris would remain in place.

However, it now appears the NLRB might have found a way around that potential conflict of interest matter.  It has been reported that the NLRB is now considering engaging in rulemaking to establish a joint employer standard (presumably the ‘direct control’ joint employer standard), rather than trying to find another case to reverse Browning-Ferris.  In doing so, this proposed joint employer regulation would overturn Browning-Ferris and elminate the possibility of a similar Hy-Brand/conflict of interest scenario.  While this idea is still in the early stages, I would expect it to start picking up steam in the months ahead.


For additional information:  http://www.insidesources.com/fed-labor-board-looks-undo-obama-era-rule/

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