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NLRB Reinstitutes the Browning-Ferris Joint-Employer Standard – For Now

1 May 2018

When the National Labor Relations Board (“NLRB”) expanded its definition of “joint employer” in 2015 to include companies that share some direct or indirect control over other companies’ employees, many businesses were understandably concerned that they could become partly or wholly responsible for individuals previously considered to be other companies’ employees. This new joint-employer standard, established in the NLRB’s decision Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015) (“Browning-Ferris“), seemed to be here to stay, as it was cited extensively by the NLRB and adopted by federal district courts.

However, the NLRB reversed course in December 2017. In Hy-Brand Industrial Contractors, Ltd. & Brandt Construction Co., 365 N.L.R.B. 156 (Dec. 14, 2017) (“Hy-Brand“), the NLRB overruled its previous decision in Browning-Ferris and returned to its previous joint-employer standard. Specifically, Hy-Brand established that “two or more entities will be deemed joint employers . . . if there is proof that one entity has exercised control over essential employment terms of another entity’s employees . . . and has done so directly and immediately . . . in a manner that is not limited and routine.”1

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