On September 14, 2018, the National Labor Relations Board published a new proposed rule that attempts to reverse the joint-employer rule created in the Board’s Browning-Ferris Industries decision of 2015. (Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). On December 10, 2018, the Board issued a notice that it was extending until January 14, 2019, the deadline for submitting comments to the proposed rule, and extending until January 22, 2019, the deadline for responding to comments to the proposed rule.
Under Browning-Ferris, the Board expanded its joint-employer standard and changed 30 years of precedent in ruling that two businesses are joint employers when one has “indirect” or “reserved” control over another’s workers rather than the previously required direct and immediate control over essential employment terms that was actually exercised. As we previously reported, the Board had overruled Browning-Ferris in its December, 2017 Hy-Brand Industrial Contractors decision, but in February, 2018, the Board vacated its Hy-Brand decision when it determined that one of its members had improperly participated in the decision. When the Board vacated Hy-Brand, it effectively reinstated the indirect control test set forth in Browning-Ferris. The Board’s proposed new rule would again reverse Browning-Ferris and require a finding of direct and immediate control over the essential terms and conditions of employment in order to establish a joint-employer relationship. Additional information regarding the proposed new rule can be found here.
This is the second time that the NLRB has extended the comment period for its proposed new rule, and to date more than 10,000 comments have been submitted.