Browning-Ferris Asks Court to Stay Out of Joint Employer Case

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By Hassan A. Kanu

The company in the middle of a dispute that could decide when a business is considered an employer of workers supplied by contractors and other businesses has asked a federal appeals court not to weigh in on the hot-button joint-employer issue.

Browning-Ferris Industries filed a motion March 12 asking the U.S. Court of Appeals for the District of Columbia Circuit to deny the National Labor Relations Board’s request that the court resume reviewing the company’s appeal of a 2015 board decision. The company said the board’s request is “premature” because the NLRB hasn’t resolved confusion about how it determines whether a business is a joint employer.

The move indicates the company may be concerned that the appeals court will affirm the labor board’s decision, in which the NLRB adopted a legal standard that makes it easier to hold multiple companies jointly liable for violations of labor law. A Democratic-majority board issued the 2015 decision, which was slammed by businesses and a group of mostly Republican lawmakers. The NLRB is expected to regain a Republican majority in the coming months, and some members have shown an intent to nix the current joint employment standard.

The issue has ping-ponged several times. The Obama board established the expanded standard in a decision against Browning-Ferris, which the company appealed to the federal court.

A newly Republican board overturned the Browning-Ferris standard last year and reverted to a more business-friendly standard. That decision, in a case involving Hy-Brand Industrial Contractors, was recently withdrawn after the NLRB inspector general said Member William Emanuel (R) shouldn’t have participated. The holding against Browning-Ferris—and the resulting expanded standard—thus went into effect again.

The board later asked the court to resume Browning-Ferris’ appeal of the 2015 decision. The company’s opposition to that request leaves the case in limbo.

Browning-Ferris argued that the board’s request is “premature” because the Hy-Brand case is still pending before the NLRB. Hy-Brand has asked the board to reconsider its latest decision in that case.

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