By Yen P. Chau
The NLRB flip-flops again. After less than 3 months, the test as to whether the 2 or more entities will be deemed joint employers is back to the 2015 standard announced in the Board’s Browning-Ferris decision. Just in December 2017, the Board overruled Browning-Ferris in a 3-2 decision, Hy-Brand, which requires a showing that the company alleged to be a joint employer actually exercised some “direct and immediate control” over the essential employment terms of another company’s employees.
On February 26, 2018 though, the Board voted to vacate its Hy-Brand decision after an ethics investigation determined that member William Emanuel should have been disqualified from participating in the decision (his former law firm represented one of the companies in Browning-Ferris). Member Emanuel was in the majority of the 3-2 Hy-Brand decision.
For now, the Browning-Ferris standard applies; within the collective bargaining arena, joint employment can be established by showing “reserved contractual control”, even if not exercised, or indirect control, or control that is “limited and routine.”