August 22, 2019

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Browning-Ferris Joint Employer Test Argued Before D.C. Circuit

Oral argument was heard on Thursday, March 9 before the D.C. Circuit Court of Appeals in Browning-Ferris’ continued effort to overturn the NLRB’s new Joint Employer test.

According to published reports, the tone of the questioning from the three-judge panel should give some hope to employers rooting for a reversal of the Board’s broad new test.  Judge Patricia Millett, according to the National Law Journal, “dominated most the argument time of both sides.” At one point, Judge Millett told the Board’s attorney that the NLRB “dropped the ball” with its ruling by failing to establish the weight that would be applied to the various reserved control factors.

The Board used the Browning-Ferris case to revise and broaden its 30-year-old joint-employer test.  Under the Board’s new standard, a two-part test will be used in which “control” can be found through either direct or indirect control. But in addition, the mere reservation of a right to control the temporary staffing employees may be enough under the test to find a joint employer relationship.

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About this Author

Gerald Lutkus, Barnes Thornburg Law Firm, South Bend, Labor and Employment Attorney,
Partner

Gerald F. (Jerry) Lutkus is a partner in the South Bend office of Barnes & Thornburg LLP where he is a member of the firm’s Labor and Employment Law and Litigation Departments. He practices in the areas of labor and employment law counseling and litigation, arbitration, collective bargaining, and media law. Mr. Lutkus has been recognized on the Indiana Super Lawyers list for his work in labor and employment Law. The Best Lawyers in America has recognized Mr. Lutkus for over 10 years for his work in commercial litigation, employment law - management...

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