NLRB Joint Employment Fiasco Grows More Fiasco-ey with General Counsel’s Brief

tennis image NLRB general counsel brief hy-brandWhen watching tennis, it’s best to sit on one of the ends of the court. If you sit in the middle of the court, your head will swivel back and forth on every shot, eventually causing your neck to detach from your shoulders. (Disclaimer: I am not a doctor.)

Watching the NLRB wrestle with joint employment in real time is like watching a long rally from a seat in the middle of the court. My neck hurts just reading this stuff.

The latest development is that the NLRB’s General Counsel, a Presidential appointee who acts as the Board’s chief prosecutor, filed a brief with the Board asking for a decision that the Board’s recent decision to reverse the decision that reversed the Browning-Ferris decision should be reversed. Got that?

Let’s review.

In December 2017, in a case called Hy-Brand, the NLRB reversed the “indirect control” test for joint employment that had been established in the 2015 Browning-Ferris case. The Hy-Brand decision was issued by a 3-2 vote, along party lines.

In February 2018, the NLRB Inspector General (IG) released an opinion suggesting that Member Emanuel should have recused himself from the Hy-Brand decision. Had Emanuel not participated in Hy-Brand, the vote would have been 2-2, and Browning-Ferris could not have been overturned.

The timing of Hy-Brand was important too, since it was issued just before Member Miscimarra stepped down. When Miscimarra stepped down, his absence temporarily left the Board without a Republican majority, which is where things sit today, pending confirmation of John Ring to replace Miscimarra in the third Republican seat.

A few days later, after squinting into my defective crystal ball, I wrote that the IG’s argument in favor of recusal was a bunch of hooey, that Member Emanuel’s participation in the Hy-Brand decision was appropriate, and that the chances of the Board vacating the the Hy-Brand decision was roughly equivalent to the Cleveland Browns’ chances of an undefeated season in 2018. (Ok, I didn’t go that far, but close.)

Hours after my post, the Board vacated the Hy-Brand decision, prematurely ending my lifelong aspirations of becoming a fortune teller. (I really liked the post too. I even commented on the origins of the “The” in The Ohio State University. Click here to satisfy your curiosity.)

The order vacating Hy-Brand was entered into by three members of the Board, without participation by Member Emanuel. He was in time-out. 😢

Ok, now we’re caught up.

The General Counsel’s Brief, filed April 5th, argues that the decision vacating Hy-Brand was bungled and should be undone.

First, he argues that the proper procedure for considering whether a member should recuse himself is for the member at issue to decide whether to recuse himself. That’s been the procedure for approximately forever, except in this instance. Same thing in federal court. That’s how it works. But the normal procedure was not followed.
Second, the GC argued that Hy-Brand (the company) was entitled to a hearing before the full 5-member Board, meaning that Member Emanuel had a duty not to recuse himself.

Got all that?

Now, are you ready for the icing on the pile of poo? 💩

Guess who gets to decide whether three of the four Board members acted improperly when they vacated the Hy-Brand decision without consulting Member Emanuel and without allowing him to evaluate whether he should recuse himself? Yes, this decision will be made by the three members who vacated Hy-Brand, plus Emanuel. Should they recuse themselves? Can they? Should Member Emanuel recuse himself from deciding whether the Board should have allowed him to consider whether to recuse himself earlier?

This is fun!

Go Browns!

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

Enter your email address to follow this blog and receive notifications of new posts by email.

 

Will Recusals Sink the NLRB’s Pro-Business Agenda?

6AEEC9D2-D576-4264-AE48-A0512A656B37

“Recuse.” Verb, meaning to cuse again.

Sorry, it doesn’t mean that at all. We’ve heard a lot about recusal in the news lately, relating to a certain Attorney General and one of the former Soviet Republics (the big one).

The NLRB is dealing with recusals too. And recusals within the Board may affect your business.

Of the soon-to-be-majority Republican Board members, two are from big defense firms. The Board recently vacated its important Hy-Brand decision that attempted to restore sanity to the joint employment test, after the NLRB’s Inspector General determined that Member Emanuel should have recused himself. That conclusion was based on the fact that his prior law firm, Littler, represented a party in the Browning-Ferris case, which Hy-Brand tried to reverse. Littler’s extensive client list of big businesses means this issue is likely to come up again. Emanuel could find himself disqualified from participating in other important Board cases, including other joint employment cases.

And he’s not the only one.

John Ring, the third Republican appointee to the Board (scheduled for confirmation hearings shortly), is from the large law firm Morgan Lewis, which also represents many large businesses. Ring recently submitted his potential conflicts list. It’s long, and it includes lots of well-known corporate names.

So he could find himself disqualified too.

The newly reconsitituted Trump-appointed Board is expected to issue plenty of 3-2 party-line pro-business decisions, reversing Obama-era decisions. Is that still possible, if two of the three Republican members could be conflicted out of the most significant cases?

It’s a tough question, and the answer remains to be seen. Trump could have appointed pro-business Board members from small employer defense boutique firms instead of choosing lawyers from two of the largest firms in the U.S. Had lawyers from smaller firms been selected instead, the likelihood of recusals would have been much smaller.

With important decisions to be made at the NLRB about the test for joint employment and other significant union-management issues, the Trump Administration’s decision to appoint two big firm lawyers could threaten its anticipated pro-business agenda.

For more information on independent contractor issues and other labor and employment developments to watch in 2018, join me in 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.

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

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?

CA6A60D6-D787-4806-90DF-E825FBEA4969

[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

NLRB Smells Something Rotten, Seeks Input on Major Misclassification Decision

CA5ED89A-9590-4B8C-B8C6-88EEEED7168A

Screenshot from metro.co.uk

A flight from Dubai to Amsterdam made an emergency landing last week after a fight broke out over a passenger’s excessive flatulence. The two Dutchmen sitting next to the flatulator asked him to cut it out, but he wouldn’t (or couldn’t) stop spreading his perfumery around the cabin. A fist fight broke out and the pilot diverted the flying stinkship to Vienna, where several passengers were removed. Read more here.

Something smells rotten to the NLRB as well, four months after an Administrative Law Judge (ALJ) ruled that independent contractor misclassification, by itself, can be an unfair 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