Browning-Ferris Industries of California, Inc. v. National Labor Relations Board et al.

The RLC has been involved in several cases involving the Joint Employer standard under the National Labor Relations Act (NLRA) in both federal and state courts as well as before the National Labor Relations Board (NLRB). Several courts have ruled in favor of reinstating the traditional standard, which follows the RLC’s legal rationale. Last summer, the RLC filed a Petition for Rulemaking before the NLRB highlighting the impact of expanded joint employment liability on the industry. In September of 2018, the NLRB issued a Notice of Proposed Rulemaking that would restore the traditional “direct and immediate control” standard of joint employment.

In late December 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued a confusing opinion in Browning-Ferris Industries of California Inc. v. National Labor Relations Board et al. that only further complicates the issue of determining joint-employer liability. The Court held that “indirect control” can be a relevant factor when considering whether a joint-employment relationship exists between two entities. The Court then remanded the case back to the National Labor Relations Board (Board) to determine the appropriate amount of control one company must exercise over another before it would be considered jointly-liable.

However, as stated above, the Board had already begun the process of formal rulemaking to clarify this critical issue for all employers. In our comments we urged the Board to quickly and decisively adopt the “direct and immediate” standard that was included in the Board’s initial proposed rule and was set law for three decades. “

Resolution

On April 6, 2018, the D.C. Circuit agreed to take back Browning-Ferris appeal, but is holding it in abeyance “pending prompt disposition” by the NLRB of Hy-Brand. The D.C. Circuit also ordered the NLRB to file status reports every 21 days updating the appellate court of the status of the Hy-Brand case.