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On October 26, 2023, the National Labor Relations Board (the “Board”) released a final rule which vastly broadens the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”) and makes it easier for the Board to find a joint employer relationship. This updated standard rescinds and replaces the prior standard under the 2020 final rule, discussed in our blogs here and here. The new final rule makes three key changes:Continue Reading Who’s a Joint Employer Now? New NLRB Rule Drastically Expands Joint Employer Definition

The National Labor Relations Board has made good on its recent promise to move forward with rulemaking to re-establish the decades-old joint employer standard in place prior to the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris or BFI), petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB, No.16-1028 (D.C. Cir. filed Jan. 20, 2016).  On Sept. 13, the Board announced that it is issuing a proposed rule (to be published in the Federal Register on September 14, 2018) to establish an updated standard for determining joint employer status under the National Labor Relations Act.  Under the proposed rule, “[a]n employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”  Notably, the Board’s proposed rule clarifies that a putative joint employer “must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.”  No doubt relieved to see a return to the pre-BFI standard, employers will be further delighted to discover that under the proposed rule, the Board is “presently inclined to find, consistent with prior Board cases, that even a putative joint employer’s ‘direct and immediate’ control over employment terms may not give rise to a joint-employer relationship where that control is too limited in scope.”
Continue Reading NLRB Issues Proposed Rulemaking on the Joint Employer Standard

On June 5, 2018, in response to a May 29, 2018 letter from Sen. Elizabeth Warren (D-MA), Sen. Bernard Sanders (I-VT), and Sen. Kirsten Gillibrand (D-NY), National Labor Relations Board (“NLRB” or “Board”) Chairman John Ring confirmed that the NLRB intends to move forward with rulemaking on the joint employer standard and that a Notice of Proposed Rulemaking will be issued by the summer. Chairman Ring’s response comes only one month after the NLRB announced in May that it was merely considering rulemaking on the issue.
Continue Reading NLRB Confirms That It Intends To Proceed With Rulemaking On Joint Employer Standard

On May 9, 2018, the National Labor Relations Board (“NLRB”) announced it is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”). As Chairman of the NLRB John Ring explained in the NLRB’s press release:

“The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”
Continue Reading National Labor Relations Board Deviates from Typical Practice and Announces that It is Considering Rulemaking to Address Joint Employer Standard

It is a rare occasion that the phrase “joint employer” has positive implications for any business. However, a panel sitting on the California Court of Appeals recently gave one party in a joint employer arrangement cause to celebrate when it held in Castillo v. Glenair, Inc., 22 Cal. App. 5th 348 (2018) [1], that the settlement of an earlier wage and hour class action filed against the party’s retained staffing company barred the instant suit alleging the same claims on behalf of the same class.
Continue Reading Court Rejects Plaintiffs’ Attempt to Double-Dip in Settlement Pool

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game.
Continue Reading Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

On March 1, 2018, the Deputy Associate General Counsel for the National Labor Relations Board (“NLRB”) asked the D.C. Circuit to revive its review of the Obama-era Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) joint employer test in light of the Board’s February 27, 2018 decision to vacate Hy-Brand Industrial Contractors, Ltd, 365 NLRB No. 156 (December 14, 2017) (“Hy-Brand”).

In BFI, the Board announced a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. BFI became arguably one of the most controversial NLRB rulings from the Obama-era Board, drawing severe scrutiny from the employer community. 

BFI petitioned for review and the NLRB cross-applied for enforcement of its order. The D.C. Circuit Court of Appeals heard oral arguments in March 2017.

In December 2017, before the D.C. Circuit Court of Appeals reached a decision concerning the petition, the now Republican-majority NLRB issued is decision in Hy-Brand, which overturned the Board’s decision in BFI and restored its “direct control” joint employment standard. The NLRB asked the D.C. Circuit to remand the BFI appeal in light of the Hy-Brand decision, which the Court granted.
Continue Reading NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics Official’s Report

Yesterday, the National Labor Relations Board (“Board”) overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) and returned to the pre-BFI standard that governed joint employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”).

The BFI decision set forth a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. BFI received widespread criticism from both unionized and union-free businesses, as the BFI test was unpredictable and fundamentally altered the law applicable to a number of business relationships including: user-supplier, contractor-subcontractor, franchisor-franchisee, parent-subsidiary, predecessor-successor, lessor-lessee, and creditor-debtor. Efforts to overturn BFI have been ongoing since 2015, including the Save Local Business Act which was advanced to the Senate in November 2017.
Continue Reading NLRB Overrules Browning-Ferris Joint Employer Standard

On November 8, 2017, Peter B. Robb was sworn in as the General Counsel (GC) of the NLRB for a four year term. Robb succeeds Richard Griffin, who has been the GC since November 2013. Robb wasted no time in taking initial steps to undo many of the NLRB’s more controversial recent decisions. On December 1, 2017, Robb issued Memorandum 18-02 directing the NLRB’s regional offices on which types of charges should be submitted to his Division of Advice and rescinding policy memoranda issued by the prior GCs.
Continue Reading New Labor Board GC Signals Overturning Obama-Era Rulings, But Anticipated Vacancies and Recusals Create Uncertainty

Yesterday evening, the U.S. House of Representatives passed the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the…
Continue Reading House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling