October 23, 2021

Volume XI, Number 296

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October 22, 2021

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NLRB Vacates Hy-Brand Decision thereby Reinstating Browning-Ferris Joint-Employer Test

On February 26, 2018, the National Labor Relations Board (“NLRB”) unanimously vacated its own December 2017 decision in Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co. The vote to vacate the Hy-Brand decision came in the wake of an inspector general report that faulted member Bill Emanuel for improperly participating in that case based on his prior law firm’s involvement in the Browning-Ferris case.

With Hy-Brand vacated, the joint employment standard returns to the standard articulated in Browning-Ferris Industries. Under the joint employer test in Browning-Ferris, joint-employers are no longer solely defined by the exercise of “direct and immediate control,” rather, a business can also qualify as a joint-employer if it has “indirect control,” or the ability to exert control, over the employees of another business.

Although the NLRB’s decision to vacate Hy-Brand returns the joint-employer test to its Browning-Ferris standard, employers can expect that the joint employer issue will continue to be revisited by the Board with future changes in its composition, as well as by Congress at the Board’s invitation. We will continue to monitor these developments, and employers should continue to carefully consider the structure of relationships in which any level of control exists with regard to another entity’s employees.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 58
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About this Author

Theresa Sprain, Womble Carlyle Law Firm, Labor and Employment Attorney
Member

Building upon her experience as a product liability litigator handling multi-party, multi-state lawsuits, Theresa is a member of the Labor and Employment Practice Group, concentrating her practice on litigation. She is particularly focused on litigation regarding gender, age, race, and disability discrimination and retaliation matters; arbitration of employment contract disputes; and counseling employers on human resources policies and employment law compliance. She represents a broad spectrum of clients, including manufacturers, hospitals, universities and service...

919-755-2104
John E. Pueschel, Womble Carlyle, employment lawyer, wage discrimination attorney
Partner

John devotes his practice to representing businesses in the ever-changing area of labor and employment law. Whether helping employers avoid litigation by guiding them through the maze of employment-related statutes and regulations, or aggressively representing them in lawsuits or arbitration, John offers advice and assistance in a wide array of employment-related issues. For example, he regularly assists businesses with discrimination and harassment claims under Title VII, the ADA, the ADEA, the FMLA and equivalent state laws, claims of wrongful termination and...

336-721-3726
Jennifer Nusbaum, Womble Dickinson Law Firm, North Carolina, Labor and Employment Litigation Attorney
Associate

Building on her experience as both a litigator and transactional attorney, Jennifer Nusbaum is a member of the Labor and Employment Practice Group and the Education and School Law Team. Jennifer’s experience with litigation, client counseling, intellectual property, and corporate drafting allows her to bring a new prospective to the table when dealing with employment matters.

She represents a broad spectrum of clients in a range of matters including gender, age, race, and disability discrimination and retaliation matters; arbitration of...

919-755-2111
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