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.
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Save Local Business Act
NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics Official’s Report
By Keahn Morris on
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.
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NLRB Overrules Browning-Ferris Joint Employer Standard
By Keahn Morris & Mark Ross* on
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.
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House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling
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…
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Labor Relations Update: New NLRB General Counsel Nominee Poised to Undo Obama-Era Precedents
Senate Republicans recently confirmed William Emanuel, the second Trump nominee to the five-member National Labor Relations Board (the “Board”), giving the Board a Republican majority for the first time since 2007. Mr. Emanuel’s confirmation follows the September 25, 2017 appointment of Peter Robb, a management-side labor and employment lawyer, as General Counsel of the Board. Each of President Trump’s recent appointments are expected to advance the president’s pro-business and pro-employer policies. In particular, Mr. Robb’s replacement of the current General Counsel, Richard Griffin, is a crucial step towards upending the Board’s recent anti-employer rulings.
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Committee Approves Save Local Business Act – Redefining Joint Employer Liability
Yesterday, the U.S. House Committee on Education and the Workforce approved the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and…
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Save Local Business Act Introduced in the House
The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” rule, which sets 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.
Continue Reading Save Local Business Act Introduced in the House