The 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 dreadfulBrowning-Ferris standard went back into effect, Continue reading →
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.
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.
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?)
Can OSHA cite your business for conditions that affect another company’s employees? Maybe.
OSHA’s Multi-Employer Citation Policy addresses who gets cited for violations that occur on a multi-employer worksite. If your company hosts staffing agency workers, that may include you.
The policy has been subjected to several legal challenges, though, based on an argument that OSHA obligations extend only to an employer’s own employees. One of these challenges is currently pending in the Fifth Circuit Court of Appeals, based on a dispute over an Austin, Texas, construction site.
While we wait for a decision, though, here’s what OSHA has to say about its authority to issue citations on multi-employer worksites: Continue reading →
Have you ever had the dream where you show up at work or school in your pajamas or underwear? You’re exposed and embarrassed in the dream, and you can’t figure out why you forgot to put on regular clothes, right? (Please don’t tell me I’m the only one who’s had this dream. Please?)
You may be living this dream inadvertently in your vendor or subcontractor agreements. (And this is not what people mean when they say, “I’m living the dream!”)