September 23, 2019

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National Labor Relations Board Extends Reach of Browning-Ferris Joint Employment

On July 11, 2016, the National Labor Relations Board extended the reach of its ground-breaking 2015 Browning-Ferris decision, which announced an expansive view of “joint employment,” and ruled that “employer consent is not necessary” to require multiple employers to jointly bargain with “units that combine jointly employed and solely employed employees of a single user employer.”  Miller & Anderson, Inc.  (NLRB July 11, 2016).  In other words, if, for example, an employer has ten workers performing a similar job function, five of whom it employs directly and the other five of whom are provided through a “supplier” agency, the employer can be required to collectively bargain, together with the “supplier” employer, as to all ten employees.  

The Miller Board majority expressly overruled the NLRB’s 2004 Oakwood Care Center decision in favor of the Board’s 2000 decision in M.B. Sturgis, under which the NLRB applies “community of interest factors to decide if such units are appropriate.”  “In sum,” the majority said, “a Sturgisunit comprises employees who, working side by side, are part of a common enterprise.”   

As is often the case, the dissenting opinion (submitted by Board Member Miscimarra) details just how radical a departure the majority’s ruling is from established precedent.  The dissent observed that the NLRB may now “require two or more businesses to engage in multi-employer bargaining without their consent, even though one of the entities has no employment relationship with some of the unit employees, provided that other employees in the same unit are jointly employed by the employer entities.”  Given the uncertainty Browning-Ferris creates over which businesses might be joint employers, its expansion in Miller “will only make it more difficult for parties to anticipate whether, when or where this new type of multi-employer/non-employer bargaining will be required by the Board, nor can anyone reasonably predict what it will mean in practice.” 

The dissent also refuted the majority’s assertion that it was merely “returning” to the Sturgis rule: “Throughout the 4-year period governed by Sturgis (and for many years before and after Sturgiswas decided), the joint-employer landscape was circumscribed by well-known limiting principles that were repudiated, with considerable fanfare, in Browning-Ferris.  Thus, my colleagues do not ‘return’ to a legal regime that has ever existed.”  Member Miscimarra took further exception as “the available evidence indicates no employees of the Employers will be affected by the Board’s decision in this case, which means the Board is essentially issuing an advisory opinion that overrules existing precedent.” 

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About this Author

Jerrold Goldberg, Greenberg Traurig Law Firm, Labor and Employment, Real Estate and Education Attorney
Shareholder

Jerrold F. Goldberg practices in the firm’s Labor & Employment Practice’s Labor-Management Relations group. He has been practicing in virtually all aspects of labor and employment law since 1979, including the traditional labor/union-management area, employment discrimination, executive employment, severance agreements and wage and hour laws. Jerry exclusively represents management clients primarily in the real estate and hospitality industries in transactional matters, including commercial and residential building and hotel sales and purchases, administrative...

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Michael Slocum, Greenberg Traurig Law Firm, New Jersey, Labor and Employment, Litigation Attorney
Of Counsel

Michael J. Slocum focuses his practice on labor and employment law, including the defense of discrimination, retaliation, wrongful discharge and whistleblower claims. Michael has represented employers in a broad array of industries, including health care and life sciences, pharmaceutical, private security, and retail, and has experience defending against both individual employee claims and class actions.

Prior to joining the firm, Michael practiced in the litigation department of a national firm focused on labor and employment matters in the life sciences industry, where he served as Editor of that firm's "False Claims Act Quarterly." He has experience representing clients at the trial and appellate levels in state and federal courts, as well as before a variety of state and federal administrative agencies.

Michael served as Law Clerk to the Honorable Donald S. Coburn of the New Jersey Appellate Division before entering private practice.

Michael has written and spoken numerous times on a multitude of issues facing employers in diverse industries. In addition to many client alerts and online articles, Michael was a contributing author to "Avoiding Liability for Unconscious Bias and Subtle Discrimination" published in the New Jersey Law Journal in December 2008, as well as a chapter on the False Claims Act in the 2010 edition of "Health Law and Compliance Update."  Michael was a speaker at a September 2008 seminar "The New Jersey FCA: Perspectives and Insight," as well as the firm's May 2013 "Taking Care of Business: An Annual Update on Labor and Employment Law" seminar. 

Concentrations

  • Labor and employment litigation and counseling

  • Federal and state False Claims Acts

  • Whistleblower claims

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