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The National Labor Relations Board (NLRB or Board) on February 26 announced that it had vacated its decision in Hy-Brand Industrial Contractors, Ltd. The Hy-Brand decision had overturned the Obama-era joint employer standard established by the 2015 Browning-Ferris case. The NLRB’s decision today stated simply that “because we vacate the Board’s earlier Decision and Order, the overruling of the Browning-Ferris decision is of no force or effect.”
The Board’s regrettable action restores the errant Browning-Ferris standard, under which employers may be held liable under the National Labor Relations Act for workplaces they do not control and workers they do not actually employ. Browning-Ferris overturned decades of precedent and caused tremendous uncertainty in the business community, which had made Hy-Brand a very welcome development when it was issued in December 2017.
It is unclear when the Board will revisit Browning-Ferris as it currently has a 2-2 deadlock, and the nomination for a third Republican, John F. Ring, is still pending in the Senate. As a result, the Browning-Ferris joint employer standard may remain in place for some time, which is bad news for businesses large and small. Until the matter is cleared up, they are once again subject to uncertainty about liabilities and how they can interact with other employers.
The restoration of Browning-Ferris demonstrates how important it is for the Senate to pass H.R. 3441, a bi-partisan bill that would restore a common sense joint employer standard once and for all.
More about yesterday’s decision can be found here: