On Thursday, March 9, 2017, the U.S. Court of Appeals for the District of Columbia Circuit held long-awaited oral arguments in Browning-Ferris International v. NLRB. The case will be critical in defining joint employment under the National Labor Relations Act, and could have significant ramifications throughout the business community.
In August 2015, the National Labor Relations Board broadened the test for determining joint employment from one where the purported joint employer exercised “direct and immediate” control over the other entity's employees, to a much looser “indirect” control standard. The case originated when the Teamsters Union sought to represent a staffing agency's employees working at a recycling facility and named the facility as a joint employer. The Board concluded the staffing agency and its client were joint employers, relying on the facility's indirect control and reserved contractual authority over the supplied employees' essential terms and conditions of employment. This decision upended decades of long-standing precedent.
The D.C. Circuit panel overseeing Thursday's oral arguments included Judges Patricia Millett and Robert Wilkins, who were appointed by former President Obama, and Senior Judge Raymond Randolph, who was appointed by George H.W. Bush. The panel extensively questioned both parties. When addressing the counsel for the recycling facility, the judges paid particular attention to the extent of the indirect control that it exerted over the staffing agency’s employees. Similarly, when questioning the Board representative, the judges appeared skeptical that the new indirect control test would provide clarity and a clearly delineated test for joint employment. The judges also questioned why the Board’s decision listed factors that could be considered for determining indirect control but provided no guidance on how to weigh them.
While the questioning was pointed at times, the original Board decision leaves many questions unanswered. A decision from the court is not expected for several months. Of course, the possibility remains that the decision, regardless of the outcome, will be appealed to the Supreme Court. However, despite the extensive attention this issue has seen in the courts and legislatures, it remains unclear if the Justices would take up the case.