NLRB Overrules Browning-Ferris Industries and Reinstates Prior Joint-Employer Standard

The National Labor Relations Board (NLRB) on Dec. 14 reversed its position on the joint employer standard, returning the standard to its pre-2015 definition and ending years of uncertainty within the business community about the definition of joint employer.

In a 3 to 2 decision, the NLRB overruled the 2015 “Browing Ferris” decision in which the Board ruled that by merely exercising indirect control or possessing unexercised potential control over work conditions one could be a joint employer.

With the NLRB’s Dec. 14 ruling, the standard returns to its pre-2015 definition, which says a company only establishes a joint employer relationship when they directly control the essential terms and conditions of employment of another company with which they have contracted.

NATSO applauded NLRB’s reversal of the joint employer definition. In the truckstop and travel plaza industry, franchisor-franchisee relationships are ubiquitous and NATSO members work with a variety of contract workers such as equipment inspectors and fuel delivery personnel.

Because the nature of this work is such that NATSO members may provide detailed instructions as to how equipment must be inspected to ensure that there are no substance leaks, or when fuel must be delivered to minimize disruptions and potential dangers, an expanded joint employer standard would have penalized truckstop owners by viewing these work requirements as indicative of a joint employer relationship.

The Trump Administration withdrew Department of Labor guidance regarding joint employers in June, indicating that the administration was seeking to roll back the standard, but the NLRB standard had remained in force. Republicans William Emanuel and Marvin Kaplan, however, were appointed to the NLRB this fall, giving the board a Republican majority for the first time since the George W. Bush Administration, and ultimately leading to the reversal of the joint employer standard.

It is important to note that Browning-Ferris is still pending at the U.S. Court of Appeals for the D.C. Circuit. It is unclear at this point whether the case will continue to be litigated before the court or will be remanded back to the NLRB in light of this decision. 


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