Keeping up with the National Labor Relations Board (“NLRB”) can be a challenge. A mere two months after its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined a joint-employer relationship by looking at an employer’s actual control over employees, the NLRB vacated the Hy-Brand decision, causing the joint-employer standard to revert back to the August 2015 Browning-Ferris decision, which follows an indirect and reserved control standard for determining joint-employer status.

The reversal is the result of a technicality – a conflict of interest of one of the board members involved in the Hy-Brand decision. Prior to becoming an NLRB board member, William Emanuel worked for a private law firm that represented one of the companies involved in the Browning-Ferris case. When this relationship came to light, the NLRB issued an order vacating its Hy-Brand decision, stating that the board member should have been disqualified from participating in the ruling. For now, the Browning-Ferris standard is back on top. However, in light of the NLRB’s Memorandum 18-02, employers can likely expect to see continued changes on this and other topics. Stay tuned.