Browning-Ferris Joint Employer Case Goes Back to Labor Board

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By Lawrence E. Dubé

In a one-sentence order, the U.S. Court of Appeals for the District of Columbia Circuit sent a closely watched case on joint employment back to the National Labor Relations Board.

In Browning-Ferris Industries of California, Inc., the NLRB held in 2015 that a recycling company and a staffing service could be considered joint employers under the National Labor Relations Act even if they only shared indirect or potential control over a group of employees.

Browning-Ferris asked the D.C. Circuit to review and reverse the decision. The court heard oral arguments in March but had not issued any ruling in the case.

Earlier this month, the NLRB asked the circuit court to remand the case in light of the board’s Dec. 14 decision in Hy-Brand Industrial Contractors, Ltd., which overruled Browning Ferris. The court agreed and remanded the case Dec. 22.

In Hy-Brand, the NLRB ruled 3-2 to revert to a joint employment test based on traditional principles the board followed before its Browning-Ferris decision.

Under the traditional test affirmed in Hy-Brand, the board will require a showing of direct and immediate control to support a finding that multiple entities are joint employers.

The case is Browning-Ferris Indus. of Calif., Inc. v. NLRB , D.C. Cir., No. 16-1028, remand order 12/22/17 .

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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