NLRB Decision Complicates Joint Employer Issues

by Baker Donelson

Baker Donelson

Employers are left more confused than ever after the National Labor Relations Board (NLRB) issued an Order on February 26, 2018 vacating its opinion in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. (Hy-Brand) citing ethical concerns regarding the participation of Board Member William Emanuel in that decision. The Hy-Brand case overturned the controversial joint employer test set out in Browning-Ferris Industries (Browning-Ferris). By rejecting the Hy-Brand decision, the NLRB returned to the Browning-Ferris standard, an older, more lenient version of the joint employer test.

In the Browning-Ferris opinion, which was released on August 27, 2015, the NLRB re-established the old joint employer test. Under the Browning-Ferris standard, two or more entities are joint employers if: (1) they are both employers within the meaning of the common law, and (2) they share or co-determine those matters governing the essential terms and conditions of employment. In assessing whether an employer retains sufficient control over employees to qualify as a joint employer under Browning-Ferris, the NLRB focused on whether an employer exercised control over terms and conditions of employment indirectly or through an intermediary, or whether the employer reserved the authority to do so. Interestingly, this older standard was also articulated by the Third Circuit Court of Appeals in another case involving Browning-Ferris, NLRB v. Browning-Ferris Industries.

In 2017, however, the NLRB's Hy-Brand decision overturned Browning-Ferris and reinstituted a more employer-friendly standard. Under Hy-Brand, a finding of joint-employer status requires proof that putative joint employer entities have actually exercised joint control over essential employment terms, as opposed to merely having reserved the right to exercise control. This control must be direct and immediate, and joint employer status will not result from control that is "limited and routine."

The decision to vacate Hy-Brand was based in part on a ruling by the NLRB's Designated Agency Ethics Official with the Office of the Inspector General that Board Member Emanuel should be disqualified from participating in the Hy-Brand proceedings because he would have been ethically prohibited from participating in the Browning-Ferris case due to the involvement of his former law firm. It is important to note that although Emanuel's former firm was involved in Browning-Ferris, the firm did not represent Browning-Ferris, but rather another entity involved in the case.

In vacating Hy-Brand, the Board effectively resurrected the Browning-Ferris standard as the appropriate test for identifying joint employers. However, a challenge to the Browning-Ferris decision remains pending and will now proceed back to the U.S. Court of Appeals for the District of Columbia Circuit.

Member Emanuel remains an active member of the Board but is completely barred from all proceedings involving the Browning-Ferris decision, and as a result, Hy-Brand is no longer controlling precedent. In the meantime, the NLRB is also waiting for Congress to confirm John Ring to fill the vacant position on the Board formerly held by Philip A. Miscimarra, whose term ended December 16, 2017. Thus, the Board is currently comprised of only three members who can rule on the Hy-Brand issue – Mark Gaston Pearce (Democrat), Lauren McFerran (Democrat), and Marvin E. Kaplan (Republican). Members Pearce and McFerran dissented in the original Hy-Brand decision in December 2017, and they have not indicated that their positions will change. Accordingly, a vote by the current board would likely uphold the Browning-Ferris standard for joint employers. Furthermore, even if Mr. Ring is confirmed as a member of the Board, his vote would presumably be in favor of overturning Browning-Ferris, resulting in a 2-2 split because of Member Emanuel's recusal from future decisions on this issue.

The next vacancy on the Board will occur when Member Pearce's term expires on August 27, 2018. If prior practice is continued, the vacancy will be filled by a Democrat, who would likely support Browning-Ferris. Consequently, Browning-Ferris will likely remain the prevailing standard on joint employers, absent legislative action on this issue.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.