Pink Floyd or The Who?: NLRB Extends Deadline for Public Input on Important Misclassification Decision

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Roger Waters & the boys, smiling pretty for the camera

Pink Floyd or The Who? Tough call for me, but I generally go with Pink Floyd, unless we’re listening to Tommy. Songs from both bands came to mind last week as I read the NLRB’s update on an important issue relating to independent contractor misclassification.

Who Are You (The Who, 1978)? In this post, we discussed a 2017 ruling, in which an ALJ found that the misclassification of independent contractors, by itself, is a violation of the federal labor law. This decision rejected the pickup basketball rule, “no harm, no foul.” Misclassification was deemed to be an unfair labor practice.

Join Together (The Who, 1990). The full Board then decided to reconsider that decision and invited public input on the question. Non-parties were asked to submit briefs to assist the Board in making its decision. Trade associations and labor groups are filing briefs on both sides of the issue.

Wish You Were Here (Pink Floyd, 1975). The Board temporarily lost its 3-2 Republican majority after Member Miscimarra stepped down, but earlier this month, the Senate confirmed John Ring as the third Republican member, restoring a majority and a pro-business slant.

Time (Pink Floyd, 1973). Last week the Board extended the deadline for briefing to April 30th. Any business or trade organization that wishes to provide input to the NLRB on this important issue still has an opportunity. Here are instructions for filing.

Careful with that Axe, Eugene (Pink Floyd, 1969). This is an important issue for businesses using independent contractors. If misclassification by itself violates the NLRA — even with no actual harm to the worker — then businesses may face unfair labor practice charges, even where there’s no union and, even stranger, those ULP charges can come from workers you didn’t even think were your employees.

Take It Back (Pink Floyd, 1994). Hopefully for businesses, the full Board will reverse the ALJ and reinstate the pickup basketball rule. I have High Hopes (Pink Floyd, 1994).

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

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NLRB Roller Coaster Ride on Joint Employment Rolls On

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I used to go to summer camp in Georgia, and the highlight of the summer was always a trip to Six Flags, where we would ride the Mindbender roller coaster. My coaster days are over, thanks to two back surgeries and a desire to remain upright and mobile, but watching the NLRB lately brings back memories of the sharp turns, fast drops, and tight spirals.

Yesterday, the Senate approved John Ring’s nomination as the third NLRB member, returning the Board to a Republican majority. (The vote was 50-48, like halftime in the NBA.)

With three Republican members, we can expect the Board to quickly find another opportunity to overturn Browning-Ferris and return the joint employment test to a more rational standard that requires a finding of direct, material control before a company can be deemed a joint employer.

There are a few ways this might happen.

Plan A is that the D.C. Circuit Court of Appeals could help. In an unusual move, the Court of Appeals agreed late last week to re-open the Browning-Ferris appeal.

The Court of Appeals had dismissed the appeal several weeks ago as moot, after the NLRB issued its Hy-Brand decision, which overturned Browning-Ferris. But after the NLRB said “my bad” and vacated its Hy-Brand decision, the Board asked the Court of Appeals to take the case back and to issue a ruling on what the proper joint employment standard should be. On Friday, the Court of Appeals re-opened the case and will soon issue a decision.

If the Court of Appeals says the Browning-Ferris case was wrongly decided by the Obama Board, then the newly constituted NLRB can hop on that bandwagon and decide to adopt that decision as its new test.

On the other hand, if the Court of Appeals affirms Browning-Ferris, the NLRB will just ignore the decision and move to Plan B or C.

Plan B would be to get Hy-Brand back on the books as good law. That would mean reinstating the Hy-Brand test as the proper standard for determining joint employment. The Hy-Brand test would require direct and material control before a business can be deemed a joint employer under labor law. The NLRB’s General Counsel recently chastised the Board for vacating its own Hy-Brand decision without following the usual rules for recusal.

If that fails, there’s Plan C, which seems more viable now that John Ring has restored the NLRB to a 3-2 Republican majority. The Board can find a new case — other than Hy-Brand — and adopt the revised business-friendly joint employment test that the NLRB tried to adopt in Hy-Brand.

Plan C would require finding a case that allows Board Members Ring and Emanuel to dodge any conflict issues, as they both come from large law firms with lengthy client lists, which is precisely the problem that led to Hy-Brand being vacated in the first place. Too many potential conflicts. They will need to find a clean case with no apparent conflicts, but that can be done.

Meanwhile, this has been a roller coaster ride. The NLRB will eventually settle on a new joint employment standard (I expect), just like the Mindbender eventually settles back down on a straightaway and slows down to let off the riders — who, like NLRB-watchers, are now dizzy and disoriented.

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

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

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“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?

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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 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