On Monday February 26, 2018, the NLRB unanimously vacated its recent Hy-Brand decision from December 14, 2017, effectively reinstating the Obama-era Browning-Ferris test for determining joint-employer status established in 2015.
The NLRB's decision was based on the finding that William Emanuel, one of President Trump's newly-appointed Board Members, should have recused himself from Hy-Brand because of a potential conflict of interest based on his former firm's involvement in the Browning-Ferris decision. Specifically, Emanuel's former firm represented one of the clients in Browning-Ferris, and the Hy-Brand decision incorporated arguments in the Browning-Ferris dissent. In light of this finding, the decision became split 2-2 and thus no new joint employer test was established.
As we've previously highlighted, an entity is at risk of joint-employer liability under Browning-Ferris even if it only exercises "indirect control," "limited and routine" control, or even has (but never uses) a reserved right to control essential employment terms and conditions.
While the decision to vacate means Browning-Ferris is again the law of the land, that case's life expectancy still appears short. President Trump has nominated Republican John Ring, who if confirmed by the Senate would reinstate the Republican majority (3-2). And the Trump-appointed NLRB General Counsel noted on December 1, 2017 that "cases that involve significant legal issues should be submitted to Advice," which includes "cases over the last eight years that overruled precedent and involved one or more dissents." The General Counsel even listed Browning-Ferris as an example of a case "where we also might want to provide the Board with an alternative analysis." We anticipate the soon-to-be fully constituted NLRB will take another joint employer case once the empty seat is filled.