Tag Archives: joint employer

New Joint-Employer Standard Properly Developed But Improperly Applied, Rules Federal Appeals Court

There have been many precedent changing decisions coming from the NLRB in the last few years. Few of these changes were more hotly contested, or farther reaching, than the Board’s decision in Browning-Ferris where it altered its longstanding joint employer test. The new joint-employer test made it much more likely for a joint-employer relationship to be found to exist. The decision … Continue Reading

NLRB Announces Proposed Rule Changing Joint-Employer Standard

By Zach Fasman on September 14, 2018 Posted in Joint Employer, NLRA

The National Labor Relations Board announced that it will publish a Notice of Proposed Rulemaking today, September 14, regarding its joint-employer standard. The proposed rule will state that an employer may be considered a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and … Continue Reading

NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard

By Mark Theodore, Joshua Fox and Dana N. Berber on May 14, 2018 Posted in Joint Employer, NLRA, NLRB, Rulemaking

As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux. For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to a more rigorous showing that had been … Continue Reading

ABOUT FACE! Under Pressure, NLRB Vacates Joint Employer Standard and Returns to Browning-Ferris

By Michael Lebowich, Joshua Fox and Jordan Simon on February 26, 2018 Posted in Joint Employer, NLRA, NLRB

In an unexpected and critical turn of events, after extensive political pressure, the NLRB, sitting as a three-member panel comprised of Chairman Kaplan and Members Pearce and McFerran, vacated last year’s decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017) due to Member William Emanuel’s participation in the decision. Prior to … Continue Reading

A Return to Clarity: Traditional Joint Employer Test Reinstated

By Joshua Fox on December 18, 2017 Posted in Joint Employer, NLRA, NLRB

As we noted last week, one of the more controversial Obama-Board rulings expanding joint employer liability was overruled this past week. In a widely-predicted 3-2 decision (Miscimarra, Kaplan, Emanuel), the NLRB, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), reinstated the traditional standard that had been followed for more than 30 years. Under … Continue Reading

Here We Go: The Full Board Finally Starts to Make Its Mark

By Michael Lebowich and Joshua Fox on December 14, 2017 Posted in Employer policies, Handbook, Joint Employer, NLRA, NLRB, Section 7, Section 8(a)(1), Unfair Labor Practices

NLRB Reverses Precedent on Joint Employer Liability and Standard Governing Employee Handbooks This afternoon, just two days prior to the end of Chairman Philip Miscimarra’s term, the NLRB issued a pair of 3-2 decisions overruling significant precedent regarding joint-employer status and the legal standard governing whether workplace rules violate the exercise of Section 7 rights … Continue Reading

Stuck With It: Labor Board Forces Employers to Recognize Bargaining Units that Contain Employees of Two or More Separate Employers

By Michael Lebowich, Corinne Osborn and Rebecca Sivitz on July 13, 2016 Posted in Bargaining units, NLRB

Returning to a decision it made 16 years ago (but was overturned just 4 years after that), the National Labor Relations Board has once again ruled that it will certify a bargaining unit containing individuals from two or more separate employers without those employers’ consent. In Miller & Anderson, Inc., Case 05–RC–079249 (July 11, 2016), … Continue Reading

Too Close for Comfort? NLRB Departs from Long Standing Joint Employer Standard

By Michael Lebowich and Nayirie K. Mehdikhani on August 28, 2015 Posted in Employer policies, NLRB

Citing “changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015), a 3-2 National Labor Relations Board majority (Pearce, Hirozawa, McFerran) significantly revised and broadened the standard for assessing joint-employer status under the National Labor Relations Act. The primary justification … Continue Reading