By William Bevan III

One might say that Christmas came early for employers concerned about national labor policy as articulated through the decisions of the National Labor Relations Board (“NLRB” or “Board”). During the final days of Chairman Miscamarra’s term (December 14-15, 2017) the Republican majority issued a quartet of important decisions, perhaps none more far reaching than its decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (December 14, 2017) involving the Board’s controversial Browning-Ferris[1] standard for determining when the employers are considered joint employers. In Hy-Brand, while finding that the two employers involved were, in fact, joint employers, the Board overruled Browning-Ferris, and returned to Board law that previously governed the determination of joint-employer status. Thus, the Board rejected the so called “economic realities” tests and “statutory purpose” of Browning-Ferris on the grounds that the Board had exceeded its authority under the statute initiating such a test. The Board has wisely returned to the much more workable standard of prior Board decisions[2] and the Third Circuit’s decision in a prior Browning-Ferrisdecision,[3] namely, that joint employer status is based on a determination that one contractor, “while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.”[4]Under such traditional joint employer analysis, the Board looked to see if the two separate employers, nevertheless, co-determined the essential terms and conditions of employment of the employees involved. Again, under traditional joint employer analysis, essential terms and conditions of employment are, as one might logically imagine, hiring, firing, discipline, supervision, and direction.[5] If the customer-employer exercises control over one or all of these matters for the employees of the contractor-employees, then a joint employer relationship will be found. Our takeaway is that the Board’s return to pre-Browning-Ferris law will provide employers with far more predictability and ease of application than the “economic realities” and “statuary purpose” tests of Browning-Ferris and will avoid a number of the practical pitfalls posed by the Hy-Brand majority.[6]

WB III

[1] Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) petition for review filed (D.C. Cir. Jan. 20, 2016).

[2] See e.g., Laerco Transportation, 269 NLRB No. 324 (1984); TLI, Inc., 271 NLRB 798 (1984)

[3]  NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117 (3^rd Cir. 1982)

[4] Id. at 1124

[5] Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB, sl. op. at 6.

[6] Id., sl. op at 4-5