NLRB Misstep Reinstates Controversial "Joint-Employer" Rule

Earlier this week, the National Labor Relations Board (NLRB) was compelled to walk back its overturning of the controversial Browning-Ferris ruling, which had aimed to more closely tie infractions of franchisees to their franchisors. This past December, the NLRB had overturned the controversial Obama Administration ruling in a case dubbed Hy-Brand. However, earlier this year the NLRB Inspector General issued a report noting that NLRB member William J. Emanuel, a Trump Administration appointee, handled related cases at his previous law firm and therefore should have recused himself from the Hy-Brand decision. This development has subsequently moved the currently three other Board members to now withdraw the ruling in Hy-Brand which overturned the Browning-Ferris ruling.

This development reinstates the controversial Browning-Ferris rule; however, it remains to be seen for how long. Moving forward, the NLRB’s chances of reconsidering Browning-Ferris again are slim to none, as an assumed recused Board member would leave any future ruling at a tie with two Republican votes to two Democrat votes. It is likely the fate of the ruling will either be left up to the federal courts and/or Congress in the coming months. NRMCA has advocated ardently against the Browning-Ferris ruling and will continue to do so until the pre-Browning-Ferris joint-employer standard is reinstated.

Click here to review the Hy-Brand decision. For more information, contact Kevin Walgenbach at kwalgenbach@nrmca.org.