We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).
On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018). It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been, disqualified from participating in the [Hy-Brand] proceeding.” Accordingly, Browning-Ferris is again the controlling Board law on joint employer status.
It remains to be seen when the Board might re-visit Browning-Ferris through another decision. In the meantime, employers who face joint employer concerns should evaluate their current practices in light of this development.