D.C. Circuit: Browning-Ferris Joint-Employer Standard Upheld

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December 28, 2018

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In Browning-Ferris Industries v. NLRB, the D.C. Circuit Court stated that the National Labor Relations Board’s (NLRB) standards of “right to control” and “indirect control” are appropriate factors to determine joint-employer status on a fact-based, case-by-case basis.

In its 2015 Browning-Ferris decision, the NLRB stated an employment relationship is one where the employer either exercises control or has the right to exercise control over the work of the employee; this includes where a “user employer reserves a contractual right to set a specific term or condition of employment for a supplier employer’s workers.” Once an employment relationship is established, a factual analysis must be done to evaluate whether a joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining (i.e., wages and hours; control over the number of workers to be supplied, scheduling, seniority, and overtime; and assigning work and determining the manner and method of work performance).

In reviewing how the standard was applied in this case, the D.C. Court stated that the NLRB had evaluated “indirect control” too broadly, and that it should be limited to only those factors directly related to the terms and conditions of employment of the employees at issue, not the overall contract between the two companies.

This is yet another link in the Browning-Ferris saga. In December 2017, the NLRB overruled the Browning-Ferris standard in Hy-Brand Industrial Contractors, Ltd., only to vacate Hy-Brand in February 2018 due to a conflict of interest of one of the NLRB board members, which consequently reinstated the Browning-Ferris standard. Currently, the NLRB has proposed rulemaking to formally set a joint employer standard, which is expected to be adopted this year. Be sure to look for ongoing updates on this topic.

Action Items

  1. Read the court’s decision here.
  2. Have joint-employer relationships reviewed by legal counsel.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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