Is NLRB’s Joint Employment Decision In (“the”) Jeopardy?

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[Note to self & readers, 4:45pm 2/26/18: I spoke too soon. Hours after I published this post, the NLRB reversed itself and vacated the Hy-Brand decision, which means the 2015 Browning-Ferris joint employment standard is back. Read more here.]

Here’s the original post, but sadly my predictions below turned out to be wrong…

There are many inspectors whose names we know for their diligent (and entertaining) crime-fighting exploits. There’s Inspector Clouseau, from the Pink Panther series; Inspector Gadget, from the Inspector Gadget series; and now Inspector David Berry, from the “Office of Inspector General” [sic] at the NLRB. (I do not know what happened to the “the” in such Office’s name, but sources tell me it was stolen by Ohio State University. More on that below.)

On February 9, Inspector Berry released a memo arguing that NLRB member William Emanuel should have recused himself from the Board’s important joint employment decision in Hy-Brand, issued in December 2017 and celebrated here in my Ding-Dong The Witch Is Dead post.

Berry argues that the NLRB’s 3-2 decision in Hy-Brand, which IMO brought common sense back to the NLRA’s joint employment standard, was tainted. Why? Because Emanuel’s prior law firm, Littler (attorney population 1,300), represented one of the parties in the Browning-Ferris decision in 2015, which the Hy-Brand majority concluded was wrongly decided.

Berry argues that because the Board’s decision in Hy-Brand adopted the losing side’s arguments from Browning-Ferris, that decision magically morphed Hy-Brand and Browning-Ferris into the same case.  Or, to borrow the fancy lawyer-ese language in the memo, “the same particular matter.” Also, he didn’t say “magically morphed” but the memo would have been more entertaining if he did.

In the courtroom, the time for seeking recusal is before a decision is made, not after you don’t like the outcome. I suspect the same rule will apply here.

But meanwhile, the grandstanding is in full swing, with Senator Patty Murray and others decrying the unfairness to the American worker, and the National Right to Work Legal Defense Foundation denouncing the Office of (the) Inspector General’s double-standard.  Decry vs. denounce. Choose your sides.

Anyway, as a practical matter, it’s unlikely the Hy-Brand decision is going to be changed any time soon. It’s too important an issue to the current Board, and the complaints from Berry seem to fall in the category of “too little, too late” (which has probably been a category on Jeopardy at some point, but I don’t know how to look that up).

The new joint employment standard under the NLRA — for labor law purposes only, not for tax, employment, or benefits law — remains:

a finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control), the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”

And for those of you still reading, here’s the real story of why OSU calles itself “The,” from the university’s library webpage.

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.

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