When it comes to public policy, one of the things the business community appreciates is stability, but the National Labor Relations Board (NLRB) has provided just the opposite as far as the joint employer issue is concerned. The original sin of the Board’s 2015 Browning-Ferris decision has been compounded recently by a disruptive series of events that has employers wondering what might come next.
As observers of labor policy know well, Browning-Ferris upended decades of precedent by replacing the previously clear standard for determining joint employment with an amorphous and expansive one. As a result, employers were subjected to liability under the National Labor Relations Act for workplaces they do not control and workers they do not actually employ.
Suffice it to say that Browning-Ferris caused tremendous uncertainty in the business community and spawned significant efforts to reverse the NLRB’s overreach. Not the least of those efforts was Browning-Ferris’ legal challenge to the Board’s decision in federal court. Meanwhile, with the election of a new administration in November 2016, observers awaited the appointment of a Republican majority at the NLRB that would reevaluate the Browning-Ferris decision and ameliorate the situation by restoring the clear standard that had governed for decades.
The court challenge proceeded as normal in the United States Court of Appeals for the District of Columbia Circuit, which heard oral arguments in March 2017. Then, for a few weeks in December 2017, the NLRB had a Republican majority that finally reversed Browning-Ferris in Hy-Brand Industrial Contractors, Ltd. Since the D.C. Circuit had not yet issued an opinion in Browning-Ferris, the NLRB asked court to remand it back to the Board since the Hy-Brand case rendered it moot.
The D.C. Circuit agreed to send the case back shortly after the request, but just two months later, for procedural reasons, the Board vacated Hy-Brand and restored the errant Browning-Ferris standard. The Board’s next move was to ask the D.C. Circuit to recall Browning-Ferris for the original trial since it was no longer moot. The court ordered the company to respond to the Board’s request, which it did on March 12 by objecting to the Board’s effort to reinstate the case, calling it “premature at best.”
The reason for that objection, at least in part, was that Hy-Brand asked the NLRB to reconsider its decision to vacate the December ruling, alleging that the three member panel had “usurped authority” in doing so. With that issue undecided, Browning-Ferris observed, “there cannot be a full assessment of whether the mandate should be recalled.”
As motions and rulings zig-zag between the NLRB and the D.C. Circuit, it is anyone’s guess what may transpire. With the nomination of John Ring, who would restore a 3-2 Republican majority, still in the Senate, it seems any Board action to reverse Browning-Ferris is not imminent. As for the D.C. Circuit, it is difficult to say what it may choose to do.
All of that, of course, yet again highlights the need for a legislative fix to settle the joint employer issue. Fortunately, the U.S. House of Representatives approved the Save Local Business Act (H.R. 3441) to do just that, and it seems as important as ever that the Senate do so too as soon as possible.