Browning-Ferris Ordered to Talk Joint Employment

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By Chris Opfer

An appeals court in Washington wants to hear from the company at the center of a closely watched debate over joint employer liability.

The U.S. Court of Appeals for the D.C. Circuit March 8 ordered Browning-Ferris Industries to respond to the federal labor board’s request that the court take back a case involving alleged labor violations against workers hired by a staffing company and placed at a BFI recycling plant. The appeals court sent the case back to the National Labor Relations Board earlier this year after the NLRB changed its approach to joint labor liability for affiliated businesses in a separate decision involving Hy-Brand Industrial Contractors.

The NLRB March 1 asked the appeals court to reopen the case and resume the court’s review of the board’s 2015 ruling. The request after NLRB scrapped the Hy-Brand decision in response to Inspector General David Berry’s finding that Member William Emanuel (R) should not have participated in the case.

The abrupt changes in the board’s joint employer policy has left employers and workers uncertain about the NLRB’s position on the issue. The possibility that the appeals court may announce its own ruling on Browning-Ferris may add to the confusion.

The Obama-era board said in its 2015 Browning-Ferris ruling that a business that exerts indirect control over another business’s workers can be considered their joint employer for collective bargaining and unfair labor practice purposes. That decision drew criticism from employers and business groups that the NLRB standard created confusion about the bargaining obligations and business relationships of franchisers and franchisees, contractors and subcontractors, and other business entities. The NLRB reverted to a “direct control” standard in the Hy-Brand case, before scrapping that decision.

Browning-Ferris appealed the 2015 ruling to the D.C. Circuit, which heard oral arguments last year but never ruled on the appeal. The court in its latest order told the company to respond by March 12 to the NLRB’s request to reopen the case.

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