Holy smokes, Batman! This morning I wrote that the NLRB’s new joint employment test, from its December 2017 decision in Hy-Brand, was safe.  I was completely wrong.

A few hours ago, the NLRB reversed itself, vacated its order in Hy-Brand, and reinstated Browning-Ferris.  Whaaaaaat?

The NLRB issued this press release today:

The National Labor Relations Board (3-0, Member Emanuel did not participate) today issued an Order vacating the Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in light of the determination by the Board’s Designated Agency Ethics Official that Member Emanuel is, and should have been, disqualified from participating in this proceeding. Because the Board’s Decision and Order in Hy-Brand has been vacated, the overruling of the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), set forth therein is of no force or effect.

The sudden self-reversal was prompted by a memo from the NLRB’s Inspector General, concluding that member William Emanuel, the tie-breaking vote in the 3-2 Hy-Brand decision, should have recused himself. Amid outrage from various members of Congress and calls for a hearing, the NLRB vacated the decision voluntarily. Here is the NLRB’s full order. (It’s short.)

The effect is that Browning-Ferris is again the law — at least for now.

So, here’s the bottom line. The standard for finding joint employment under federal labor law (NLRA) is, once again, immensely broad, as set forth by the NLRB in 2015 in the Browning-Ferris decision.

Essentially, if a second company has the ability to exert indirect control over work conditions of someone else’s W-2 employees, even if not exerted, then that second company can be considered a joint employer under Browning-Ferris.

You can read more about the 2015 Browning-Ferris decision, which is now once again the prevailing law, here.

Stay tuned. There is definitely more to come.

For more information on independent contractor issues and other labor and employment developments to watch in 2018, join me in Los Angeles on Feb. 27 or Cincinnati on March 28 for the 2018 BakerHostetler Master Class on Labor Relations and Employment Law: A Time for Change. Attendance is complimentary, but advance registration is required. Please email me if you plan to attend, tlebowitz@bakerlaw.com, and list my name in your RSVP so I can be sure to look for you.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.