November 12, 2019

November 12, 2019

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November 11, 2019

Subscribe to Latest Legal News and Analysis

NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report

In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled.

The Board’s latest reversal came about as a result of a report from the Board’s Inspector General that Member William Emanuel should have recused himself from participating in the Hy-Brand decision. Emanuel’s former law firm, Littler Mendelson P.C., represented one of the joint employers involved in the Browning-Ferris decision. The Inspector General found that because Hy-Brand amounted to a “do over” for Browning-Ferris, which is still pending before the Board, Emanuel should not have participated.

Prior to 2015, the Board analyzed whether two employers were joint employers using a test that required that an entity must actually exercise direct and immediate joint control over essential employment terms and conditions of employment (such as hiring, firing, disciplining, or supervising employees) of employees at the separate entity, as opposed to merely reserving the right to exercise control, to be a joint employer. Limited and routine control (such as simply telling employees what work to perform, but not how or when to perform it) did not suffice.

In 2015, the Board reversed decades of joint employer precedent in Browning-Ferris. Under the new standard announced in that decision, the Board found that two or more statutory employers are joint employers of the same employees if they share or codetermine matters governing the essential terms and conditions of employment. The Board decided that indirect and reserved control would suffice. Thus, an employer that merely possessed the right to control the essential terms and conditions of employment for employees at another entity could be a joint employer – even if the alleged joint employer never exercised that control.

The matter appeared settled when the Board overruled Browning-Ferris in Hy-Brand. But the Board’s Inspector General found that the deliberations behind Hy-Brand, which included substantial re-analysis of Browning-Ferris, amounted to a “continuation of the Board’s deliberative process in Browning-Ferris” and thus should have precluded Emanuel’s involvement.

The Board is currently composed of two Democratic and two Republican appointees. President Donald Trump’s nominee for the vacant fifth seat, John Ring, has yet to be voted out of committee. (A hearing before the Senate Health, Education, Labor and Pensions Committee is scheduled to take place on March 1.) While the Inspector General made clear in his report that only the “very specific facts” of this matter required the recusal of Emanuel, the Board likely will take a more deliberative approach before issuing another joint employer decision.

Andrew Basking contributed to this article.

Jackson Lewis P.C. © 2019

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

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...

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

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-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

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