The Saga Continues: D.C. Circuit Hears a Challenge to the NLRB’s New Joint Employer Test

In 2015, the NLRB issued arguably one if it’s most controversial rulings in Browning-Ferris, which expanded the joint employment test, finding that a business could be a joint employer of workers provided by a temp agency if that business exerts “indirect control” over a worker, or reserves for itself the ability to exert such control.

The Board abandoned the long-standing test requiring that joint employers actually exercise “direct and immediate” control over terms and conditions of employment to be found a joint employer. For example, the Board found that Browning-Ferris’ request that the staffing agency remove workers who vandalized equipment or were caught drinking whiskey on the job supported Browning-Ferris’ status as a joint employer.

Browning-Ferris appealed the Board’s decision, and on March 9, 2017 a 3-judge panel of the D.C. Circuit heard oral arguments. Attorneys for the NLRB and the Teamsters Union argued that Browning Ferris used temporary from a staffing agency as supervisors to exert “indirect control” over employers, and that such control was enough to create a joint-employment relationship.

An attorney for Browning-Ferris Industries argued that a major problem with the NLRB’s expanded test is that allows the court to find business to be joint-employers without those employers ever having “direct and immediate” control over the workers in question. Further, he argued that the notion of direct and immediate control comports with Congress’ understanding of “the essence of a common-law employment relationship as direct supervision.”

Those who are following this issue closely got a first glimpse at how the courts may view the new test. During oral arguments, Judge Patricia Millet pointed out that the NLRB failed to clearly state how much weight it would give to the indirect or reserved control factors in joint employer determinations, questioned the ability to distinguish between genuine joint employment and contractor relationships.

Critics of the Board’s upending of contractor-staffing agency relationships may hope this is fixed with new appointments to the Board by President Donald Trump, but it may easily take more than a year for appointments to be made and the right case for reversal to work its way through the system. However the court’s comments, combined with the current shift in the political landscape as it relates to these issues, seem to indicate that employers may see more immediate relief from the courts.

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