Send Back Joint Employer Case, Labor Board Asks Appeals Court

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By Lawrence E. Dubé

The NLRB has asked a federal appeals court to remand a controversial 2015 case that, for two years, had set the standard for identifying when multiple businesses can be considered joint employers under the National Labor Relations Act.

The motion comes one day after Browning-Ferris Industries of California, one of the companies involved in that 2015 case, filed a letter with the U.S. Court of Appeals for the D.C. Circuit, telling it that the new GOP majority at the labor board had just rewritten the joint employer test in a Dec. 14 ruling, Hy-Brand Industrial Contractors, Ltd.

If the D.C. Circuit does send the case back to the National Labor Relations Board, it could result in a new determination that could be more favorable to Browning-Ferris.

The National Labor Relations Board said remand is appropriate because the board’s ruling in Hy-Brand overruled Browning-Ferris. In that 2015 decision, the board said waste recycling company Browning-Ferris and a staffing service could be considered joint employers even if they only shared indirect or potential control over a group of employees.

Browning-Ferris appealed the ruling to the D.C. Circuit, which heard oral argument in March but has not yet ruled in the case.

In the board’s new Hy-Brand decision, the NLRB decided to abandon the Browning-Ferris joint employer standard and return to its traditional analysis of joint employer cases.

Browning-Ferris should now be remanded “so that the Board may reconsider the case in light of its current precedent established in Hy-Brand,” NLRB’s Deputy Associate General Counsel Linda Dreeben said in the motion.

The case is Browning-Ferris Indus. of Calif., Inc. , D.C. Cir., No. 16-1028, motion for remand 12/19/17 .

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

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

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