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NLRB’s New Joint Employer Standard Receives Chilly Reception During Court of Appeals Hearing

The National Labor Relations Board’s new, expanded “joint employer” standard faced sharp criticism during oral argument at the United States Court of Appeals for the District of Columbia Circuit.

In Browning-Ferris, the Board created a broad new standard for determining whether two entities are joint employers. The case involved Browning Ferris Industries of California, Inc. (BFI) and a staffing agency that provided workers for BFI, Leadpoint Business Services, Inc. (Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). [hyperlink to our article])

The Board held that “control” by an employer over employees necessary to establish it as a joint employer can be established directly or indirectly (such as through an intermediary or through contractual provisions that preserve the right to control, whether or not that right is ever exercised). The Board’s decision was appealed to the United States Court of Appeals by BFI.

During oral argument, the new standard was referred to by the panel as “unworkable” and “unclear.” Judge Patricia Millett said the Board “dropped the ball” in setting the new standard. She noted the Board did not clearly state how much weight would be given to the indirect and “right to control” elements of the standard.

Judge A. Raymond Randolph pointed to an unenforced six-month limitation on employee assignments in the contract between BFI and Leadpoint as an example of what the Board might consider preserved right to control. But Judge Randolph noted that that provision suggests an attempt to avoid having permanent employees and said it seemed to favor BFI’s position.

It is not certain how the Court of Appeals will rule, but the questions and comments during oral argument certainly suggest the decision may be overturned.

Jackson Lewis P.C. © 2017

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Matthew D. Freeman, Jackson Lewis, Boston, absence issues lawyer, wage hour litigation attorney
Principal

Matthew D. Freeman is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He routinely advises clients regarding compliance with state and federal labor and employment laws, including those related to employee discipline and discharge, disability management and leave of absence issues, wage and hour issues, and reductions in force.

Mr. Freeman also regularly advises clients regarding traditional labor law issues, including employer rights and obligations under collective bargaining agreements and the...

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney
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Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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