NLRB Overrules Browning-Ferris Joint Employer Standard, Reinstates Former Test

The National Labor Relations Board has overruled, 3-2, Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre–Browning Ferris standard that governed joint-employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017).

The Board wrote:

“We find that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, it is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations. Accordingly, we overrule Browning-Ferris and return to the principles governing joint-employer status that existed prior to that decision.

“Thus, a find­ing of joint-employer status requires proof that the al­leged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise con­trol), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

The decision applies to all future and pending cases.

Please check the Jackson Lewis website for a more extensive analysis of the Board’s decision.