The U.S. Court of Appeals for the District of Columbia Circuit has issued a second ruling in a long-running case that goes to the heart of who can be considered a “joint employer” under the National Labor Relations Act (NLRA). Before we proceed further, please be aware that the history of this case is complex, as is predicting the ultimate fate of the NLRA’s underlying joint employer test.
In essence, in Browning-Ferris 2, decided on July 29, the D.C. Circuit reaffirmed its 2018 ruling in Browning-Ferris Industries of California, Inc. v. NLRB (Browning-Ferris 1), in which the court affirmed a controversial 2015 ruling by the National Labor Relations Board (NLRB or Board) that established an employee-friendly test for determining when two businesses are joint employers, thereby triggering joint obligations and responsibilities under the NLRA.
Importantly, however, the D.C. Circuit’s Browning-Ferris rulings apply only to the parties to that case. In fact, the current test for determining joint employer liability under the NLRA is governed by a relatively employer-friendly regulation promulgated by the Trump-appointed majority on the National Labor Relations Board (NLRB) in 2020 after the D.C. Circuit’s ruling in Browning-Ferris 1.
As of today, the 2020 rule still controls, although the now Biden-appointed majority on the NLRB is expected to publish a proposed rule sometime in the near future that would rescind the 2020 rule and adopt instead an employee-friendly joint employer test similar to the test articulated by the Obama-Board in its 2015 Browning-Ferris ruling.
Members of the Center for Workplace Compliance (CWC) can read more here.