The National Labor Relations Board (NLRB) vacated its recent joint employment ruling, Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., which means the Browning-Ferris standard for joint employment under the National Labor Relations Act is back in effect, according to www.constructiondive.com.
The Browning-Ferris standard was established during the Obama administration and expanded the definition of "joint employer" to companies that have "indirect control" over workers. Many employers strongly opposed the ruling because they said it threatened well-established franchising relationships.
The NLRB's inspector general questioned the validity of Hy-Brand based on board member Bill Emanuel's relationship with Littler Mendelson P.C., the firm that was involved in the original Browning-Ferris case; Emanuel was formerly an attorney with the firm, and because of the conflict of interest, the inspector general said Emanuel should have recused himself from the case. This led to the decision to vacate Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co.
For the construction industry, reinstating Browning-Ferris means certain subcontractors are once again protected from general contractors' control and oversight. The Associated General Contractors of Washington says the rollback of the regulation could have made contractors tapping employment agencies or contingent workers more vulnerable to charges that concern unfair labor practices involving other employees.
At the end of 2017, the NLRB had a Republican majority and moved quickly to pass numerous decisions before former board member Philip Miscimarra ended his term. Hy-Brand was among the decisions, reversing the controversial Browning-Ferris.
The U.S. Circuit Court of Appeals for the D.C. Circuit, which was set to review Browning-Ferris, has already remanded the case back to the NLRB. In response, some business groups have turned their attention to the Save Local Business Act, a bill currently in the Senate that intends to codify the "direct control" joint employer standard into law.
