Labor Law -- 2018

Browning-Ferris Indus. v. NLRB   (D.C. Circuit)

What constitutes a "joint-employer"

On August 27, 2015 in a 3-2 decision, the National Labor Relations Board ("Board") loosened the standard for determining joint employment under the National Labor Relations Act. For the past 30 years, the relevant joint employer inquiry was whether an entity exerts a direct and immediate degree of control over another business's employees and their essential terms and conditions of employment. Under the new standard, the Board evaluates whether an entity exercises indirect control over the means or manner of the employees' work and terms of employment, or whether the entity has the potential to exercise such control. This requires a very fact-specific case-by-case inquiry.

On June 14, 2016, the NAM filed a joint amicus brief in the D.C. Circuit Court of Appeals to support Browning-Ferris in its appeal. The NAM argued that the longstanding “direct control” standard should remain the means for determining joint employment. The Board’s loosened standard subjects companies to unmerited liability, without providing the same benefits as the old rule.

Oral argument was held on March 9, 2017, and while the case was pending, the NLRB reconsidered its views on joint employers. On December 28, 2018, the D.C. Circuit upheld the NLRB's consideration of “reserved right to control” and “indirect control” in the joint-employer inquiry but remanded the case to the NLRB for it to adequately define what constitutes control. The NAM was also involved in the original NLRB decision on Browning-Ferris, which can be found here.

Related Documents:
NAM amicus brief  (June 14, 2016)


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