March 02, 2018
The National Labor Relations Board has reinstated the expansive 2015 Browning-Ferris joint employer standard, which only requires a "potential" right to exercise "indirect" control of another employer's employees. The reversal was driven by unprecedented questions surrounding the recusal obligations of NLRB member Bill Emanuel under President Trump’s Executive Order (EO) 13770 on potential conflicts of interest, a critical Inspector General report misinterpreting the EO, and mounting political pressure from congressional Democrats. In the 3-0 decision, in which Emanuel did not participate, the NLRB abandoned its December 2017 Hy-Brand decision, which would have required an employer to have direct and immediate control over the employment terms of another company's employees for joint employer liability to be established. Emmanuel has been unfairly accused of unethical activity by participating in HY-Brand because his law firm had represented at least one client in a case involving not the same company—but the same legal issue. Prior to an unprecedented and alarming interpretation of EO 13770, this had never been a concern. The Board is typically composed of former management and union lawyers coming from firms representing clients on a broad array of issues. The reversal of Hy-Brand effectively reinstates the 2015 Browning-Ferris decision. With the reversal, the pending legal challenge to the Browning-Ferris decision will now proceed back to the U.S. Court of Appeals for the District of Columbia Circuit. Separately, the Senate HELP Committee held a hearing this week on John Ring, nominated to fill the fifth seat on the Board, which would re-establish a Republican majority. Based on the NLRB Inspector General's interpretation, Sen. Elizabeth Warren (D-MA) asked Ring to provide a list of cases he would have to recuse himself from, which may include the joint employer issue as well as numerous others where Obama-era Board decisions could come into play.