“The NLRB’s Browning-Ferris ‘joint employer’ standard overturned decades of established precedent and ignored Congress’s command that federal bureaucrats should not attempt to expand the commonly understood definitions of ‘employer’ and employee.’ The NLRB should abandon that standard.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—Washington Legal Foundation (WLF) yesterday called on the National Labor Relations Board (NLRB) to overturn its new employment standard under which regulated entities can be deemed “joint employers” of another company’s employees—and then held fully liable for any obligations owed to those employees. In formal comments filed in support of the Board’s proposal to overturn the standard it adopted in its 2015 Browning-Ferris decision, WLF argues that Congress has not authorized the NLRB to expand the definition of “employer”—an expansion that threatens to impose new, unanticipated liability on a broad range of entities. Browning-Ferris held that a company can be deemed the “joint employer” of workers employed by one its independent contractors, even when it plays no direct role in establishing their terms and conditions of employment. Last month, the U.S. Court of Appeals for the D.C. Circuit rejected the NLRB’s petition to enforce Browning-Ferris, but the decision left unclear what the joint-employer standard should be going forward.
While that appeal was pending, the membership of the NLRB changed, and the new members have gone back and forth on whether to adhere to the Browning-Ferris standard. Finally, in June 2018, the NLRB opened a rulemaking proceeding and proposed a new rule that would return the joint-employer standard to the one in place before Browning-Ferris was decided in 2015. WLF’s comments largely endorse the NLRB’s proposed rule.
WLF argues that, because joint-employer issues can arise in multiple contexts, it is simply not possible to adopt a verbal formula that will explicate joint-employer standards. WLF’s comments explain, for example, that focusing on whether a company’s control of working conditions is “direct” is often unhelpful because common understandings of the word “direct” can vary so widely. WLF urges the NLRB to flesh out its rule by describing hypothetical factual cases and then explaining why a joint-employer relationship either does or does not exist in each case.
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