We previously informed you of the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. in which the Board  overruled the controversial joint employer test which it had announced in Browning-Ferris Industries. On February 26, 2018, the Board entered an order vacating the Hy-Brand decision.  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.” 
Continue Reading NLRB Vacates Hy-Brand Joint Employer Decision

The National Labor Relations Board issued a much-anticipated decision on Thursday, overruling its controversial 2015 Browning-Ferris decision that unions and employees argued drastically expanded the definition and scope of the Board’s joint-employer doctrine. In Browning-Ferris, the Board departed from decades of precedent and held that entities who merely possessed—as opposed to directly and immediately exercised—control over workers would be deemed joint employers for purposes of assessing liability under the National Labor Relations Act.
Continue Reading NLRB Overrules Browning-Ferris to Reinstate Prior Joint-Employer Standard

In a press release issued this morning, the Department of Labor has announced that it is withdrawing two administrative interpretations issued by the Department of Labor under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment.
Continue Reading Department of Labor Announces a Rollback of Obama Administration Policies on Joint Employment and Employee Classification

At the request of the U. S. Court of Appeals for the Second Circuit, the New York Court of Appeals recently answered several questions regarding liability under the New York Human Rights Law Section 296(15)—which prohibits denying employment on the basis of criminal convictions…
Continue Reading New York Court Clarifies Who Can Be Liable For Discrimination On The Basis Of Criminal Convictions

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit’s recent panel decision in Salinas v. Commercial Interiors, Inc., which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem temperate at best.
Continue Reading 4th Circuit Joint Employer Test Is Incredibly Broad

On February 27, 2017, the United States Circuit Court for the District of Columbia heard oral argument in the case entitled Browning-Ferris Industries of California, Inc., d/b/a/ Browning-Ferris Newby Island Recyclery v. National Labor Relations Board, Nos. 16-1028, 16-1063 and 16-1064. This appeal challenges the National Labor Relations Board’s (NLRB) new and imprecise standard for determining whether companies are “joint employers” for purposes of the National Labor Relations Act. The new standard, first issued in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015), abandons consideration of a company’s direct and immediate control over employees in favor of a fact-specific approach that focuses more on “reserved” or “indirect” control.
Continue Reading District of Columbia Circuit Hears Oral Argument on Browning-Ferris “Joint Employer” Standard

The National Labor Relations Board has an 80-plus year history of administering federal labor law and regulating labor-management relations in the United States. Since the board is made up of political appointees — five members who decide cases and a General Counsel who sets the board’s enforcement agenda — its interpretation of the National Labor Relations Act can vary depending on which political party holds the majority.
Continue Reading Returning Balance To The NLRB

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit Court of Appeals’ recent panel decision in Salinas v. Commercial Interiors, Inc., No. 15-1915 (4th

On March 9, 2017, a federal appeals court in Washington, DC will hear argument in a challenge to the National Labor Relations Board’s controversial standard, announced in August 2015, for finding two businesses to be joint employers, and thus responsible for each other’s legal liabilities on the labor front.  The labor community is keeping a close eye on the case.  If the NLRB’s standard is upheld, businesses across the country will face the prospect of sharing labor and employment risk with their subcontractors, supply chain partners, and maybe even their franchisees.

Continue Reading Is Joint-Employer Risk Still A Problem For The Hotel Industry?

On February 14th 2017, Hunton labor partner Kurt Larkin will present testimony at the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions hearing on “Restoring Balance and Fairness to the National Labor Relations Board.”
Continue Reading Hunton Labor Partner Kurt Larkin to Testify Before U.S. House of Representatives