NLRB reverses course on joint employers and employee handbooks

by McAfee & Taft

Whether it’s investigations, interpretations or lawsuits, actions taken by the National Labor Relations Board significantly impact employers and how they run their businesses. Decisions made by the Labor Board can apply to both unionized and non-unionized employers. Because other employment regulatory agencies like the Department of Labor and the Equal Employment Opportunity Commission have, on occasion, followed suit, Labor Board actions can sometimes have a ripple effect on a variety of employment law areas.

With the new administration, the composition of the Labor Board has switched to a Republican majority, and the newly appointed general counsel is widely regarded as having a more pro-employer viewpoint. Two decisions reached last week concerning joint employment status and employee handbooks dramatically alter the rules that had previously applied to businesses. These Labor Board actions should alert employers that more changes are to come.

Joint employers

A finding that two organizations are “joint employers” for a workforce can have serious ramifications. Joint employer status means that two employers can be held jointly liable for employment law violations alleged by a group of employees or a governmental agency. It also means that two employers are jointly obligated to comply with employment law requirements for the “shared” workforce. Claims of joint employer status are most frequently raised in the context of franchise operations and businesses that use temporary agencies or subcontractors.

Browning-Ferris owned and operated a recycling facility in California. Part of the facility was operated by personnel from Leadpoint Business Services, a staffing agency. In a 2015 decision, the prior Labor Board ruled that Browning-Ferris and  Leadpoint were joint employers for the staffing agency’s personnel assigned to the recycling facility because Browning-Ferris had “indirect control” or the ability to exert indirect control over Leadpoint’s staff. The 2015 Browning-Ferris ruling meant more businesses ran the risk of being treated by the Labor Board as a joint employer of their franchisee’s, staffing agency’s or subcontractor’s workforce.

Last week, the new Labor Board set aside the 2015 Browning-Ferris decision. Hy-Brand Industrial Contractors and Brandt Construction were two construction companies owned by the same individuals and working on some of the same construction projects. Seven employees claimed they were unlawfully discharged for going on strike to protest wages and working conditions. The fired employees claimed the two construction companies were joint employers and/or a single employer for purposes of their unlawful discharge claims. The Labor Board used the Hy-Brand case as an opportunity to narrow the circumstances where two employers would be treated as joint or a single employer. Contrary to Browning-Ferris, the new Labor Board held that control of employees must be “direct and immediate” in order for joint employment to exist, and that “limited and routine” control is not sufficient to create a joint employment relationship.

Employee handbooks

Section 7 of the National Labor Relations Act protects employees’ rights to engage in concerted action, which can include discussing workplace conditions. The prior Labor Board had challenged a number of common employee handbook policies, taking the position that some facially neutral provisions nevertheless unlawfully deterred workers from exercising their Section 7 rights. Examples of employee handbook policies the prior Labor Board contended were improper included policies that prohibited employees from criticizing their employer on social media and policies that prevented employees from using recording or photographic devices in the workplace.

In last week’s decision involving Boeing’s “no-camera rule,” the new Labor Board ratcheted back its view of when an employer’s policy crossed the line and violated  the law. Under the new standard, if a policy does not explicitly restrict protected rights, was not adopted in response to protected activity, and has not been applied to restrict protected activity, a policy is not automatically unlawful. Instead, the potential impact of a policy will be balanced against the employer’s legitimate business interest in maintaining a challenged policy.

More to come

It’s safe to say these two recent Labor Board rulings signal a sea change in the agency’s approach to employment laws. In the coming months, employers should expect changes for the following issues:

  • A repeal of the “quickie” union election rules
  • Curtailing employees’ rights to use their employer’s email system as part of union elections
  • Greater freedom for employers to take action against disrespectful employees or employees who use obscene, vulgar or inappropriate behavior when exercising protected rights.

As always, we will monitor these developments and keep employers advised.

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.

© McAfee & Taft | Attorney Advertising

Written by:

McAfee & Taft

McAfee & Taft 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.