Go Carts or Bumper Cars? NLRB Asks Court to Fix Its Browning-Ferris Blunder

Browning-Ferris joint employment go cartThe two most fun activities at amusement parks (aside from skee-ball) are Go Carts and Bumper Cars. This is scientific fact. Go Carts are fun because you can go fast, weave around, and drive in circles — all without getting honked at. Bumper Cars are fun because, well, you get to bump people.

The NLRB seems stuck on the Go Cart track, going round and round, when it would rather be in the Bumper Cars.

Last week, we reported on the Board’s sudden decision to vacate its important Hy-Brand decision, issued in December 2017. Hy-Brand was important to businesses because the decision restored sanity and workability to the NLRA’s test for joint employment.

But by vacating the Hy-Brand decision, the dreadful Browning-Ferris standard went back into effect, Continue reading

Despite New DOL, Independent Contractor Misclassification and Joint Employment Remain Risky

What effect of withdrawal of DOL memos

In June 2017, the DOL withdrew its Obama-era 2015 and 2016 informal guidance on joint employment and independent contractors. The memos covered federal wage and hour law (FLSA). Eight months later, what effect has that decision made?

Essentially none.

Remember, the 2015 and 2016 memos did not change the law on independent contractor misclassification or joint employment. Rather, the memos were an attempt by the Wage & Hour Administrator, David Weil, to summarize existing law – but with a pro-employee leaning. The memos selectively interpreted court decisions that supported Weil’s view of the world, i.e., that most workers are employees. When Weil left, the DOL said goodbye to his interpretations as well.

But … Continue reading

Browning-Ferris Is Back! NLRB Flip-Flops Again, Reinstates 2015 Joint Employment Decision!

989BD1FE-B520-4198-87E3-1A61F3AD50E0Holy 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 Continue reading

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


[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 Continue reading

After the NLRB Ruling, Is Joint Employment Still a Concern?

What is joint employment - imageLast month in the Hy-Brand decision, the NLRB raised the bar for determining whether a business is a joint employer. So now what? Is joint employment still a concern for businesses?

To paraphrase Tina Fey paraphrasing Sarah Palin paraphrasing Margie in Fargo, Ya! You betcha!

While the recent NLRB decision dropped the alert to Def-Con 4 in labor relations, the joint employment landscape under wage and hour laws is getting worse for employers, not better, thanks to the Fourth Circuit Court of Appeals. Businesses should Continue reading

Joint Employment Tests Will Remain a Mess, Thanks to an Indecisive Supreme Court

Joint employment tests are messy FLSA

Is your business a joint employer?

This sounds like a straightforward question. Unfortunately, it’s not. The test for whether a business is a joint employer varies depending on which law is being considered and where the business is located.

Let’s focus on that last part, because it is pretty ridiculous. The federal law covering overtime and minimum wage requirements is the Fair Labor Standards Act (FLSA).  The FLSA is a federal law, so it should mean the same thing all around the country, right? Right. It should. But it doesn’t.

As we saw in this map, the test for joint employment under the FLSA varies depending on what state your business is located in.

Continue reading

Ding-Dong, the Witch is Dead! NLRB Overrules Browning-Ferris


Remember the good old days, way back in 2014? You recall the time — back when David Letterman was still on the air and it was not yet illegal in New York to take a selfie with a tiger.

Yes, that was life before 2015, when the NLRB waved its magic wand, rewrote the definition of joint employment, and forced several of the planets to spin out of orbit. The Board’s decision in Browning-Ferris erased decades of precedent and caused bloggers everywhere to vomit profuse amounts of text and doomsday predictions.

For those of you who missed the news in 2015 (understandable if you spent the year focused on following the saga of Winston, the Aussie python who swallowed salad tongs), allow me to offer this quick refresher: The 2015 Browning-Ferris decision declared that, under federal labor law, a business would be considered a joint employer if it retained the right to exercise even a teeny tiny bit of control, and even if it never actually exercised that control.

Good news, citizens of earth! The planets realigned on Thursday, when the Board reversed its 2015 decision and reverted back to the old standard. The new standard is the old standard. (Got it?)

Continue reading