As we previously reported, the National Labor Relations Board (Board) on December 14, 2017 issued a decision in Hy-Brand Industrial Contractors scrapping a broad and controversial “joint employer” standard in favor of a narrowed test that made it more difficult to link affiliated business as joint employers.   Recently, however, the Board unanimously vacated Hy-Brand because of ethics questions raised by member William Emanuel’s participation in that case.

For now, the Board’s broad Browning-Ferris test for determining joint employment is once again the applicable standard. Employers may recall that under Browning-Ferris, a company could be required to bargain with another employer’s union and/or face liability under the National Labor Relations Act if the company merely reserved the right to exert control over those employees’ terms and conditions of employment, however attenuated or indirect the right may be.

It is not clear how long Browning-Ferris will remain in place.  The original Browning-Ferris decision had been appealed to the U.S. Court of Appeals for the D.C. Circuit, but that court sent the case back to the Board for further consideration in light of Hy-Brand.  On March 1, the Board’s General Counsel asked the Court of Appeals to take Browning-Ferris back under review.  Thus, the future of the Browning-Ferris doctrine remains uncertain.

The Hogan Lovells Employment Team will continue to monitor the situation and provide updates as they develop.