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March 2, 2018 • News

NLRB Reinstates Browning-Ferris Joint Employer Test

On February 26, the National Labor Relations Board (NLRB) vacated its December 2017 joint employer ruling in Hy-Brand, following a report by its Office of the Inspector General (OIG) that an NLRB board member improperly participated in that ruling. The board member’s former law firm represents Leadpoint, a party in Browning-Ferris Industries, the landmark 2015 case in which Browning-Ferris was found to be a joint employer with Leadpoint. The OIG determined that the level to which the Browning-Ferris dissent was incorporated into the Hy-Brand deliberations turned it into a continuation of the first case; although they started out as two distinct cases, it amounted in effect to a “do over” for the Browning-Ferries parties, and for this reason, the board member should have recused himself. This means that the Browning-Ferris test for determining joint employer status based on indirect control over employment, which was overturned by Hy-Brand, is once again the legal standard measure.

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