NLRB Reestablishes Commonsense Joint Employer Standard

Dec 15, 2017 - 9:00am

Senior Vice President, Employment Policy Division

Yesterday, the National Labor Relations Board (NLRB) reversed its deeply-flawed 2015 Browning-Ferris decision (BFI) that held that two employers can be found to be joint employers if they have indirect or even potential control of the same employees. The BFI decision upended decades of precedent and stability, and undermined small business growth.

In yesterday’s 3-2 decision, the NLRB overturned BFI and found that two employers can only be found to be joint employers if they exercise direct and immediate control over the same employees.

The decision is a victory for common sense, since BFI had made employers liable for workplaces they didn’t control and workers they didn’t employ.

The decision comes just prior to the departure of NLRB Chairman Phil Miscimarra, whose term at the agency ends tomorrow. Once Miscimarra is no longer on the Board, it will revert to a 2-2 partisan split. Tradition dictates that the agency does not make significant policy changes without a full five-member staff. 

Read news coverage of yesterday’s decision here:

The Hill

Law360

Reuters

Wall Street Journal

 

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About the Author

About the Author

Senior Vice President, Employment Policy Division

Glenn Spencer is senior vice president of the Employment Policy division at the U.S. Chamber of Commerce.