On February 26, 2018, the National Labor Relations Board ("NLRB") unanimously vacated its own December 2017 decision in Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co. The vote to vacate the Hy-Brand decision came in the wake of an inspector general report that faulted member Bill Emanuel for improperly participating in that case based on his prior law firm's involvement in the Browning-Ferris case.
With Hy-Brand vacated, the joint employment standard returns to the standard articulated in Browning-Ferris Industries. Under the joint employer test in Browning-Ferris, joint-employers are no longer solely defined by the exercise of "direct and immediate control," rather, a business can also qualify as a joint-employer if it has "indirect control," or the ability to exert control, over the employees of another business.
Although the NLRB's decision to vacate Hy-Brand returns the joint-employer test to its Browning-Ferris standard, employers can expect that the joint employer issue will continue to be revisited by the Board with future changes in its composition, as well as by Congress at the Board's invitation. We will continue to monitor these developments, and employers should continue to carefully consider the structure of relationships in which any level of control exists with regard to another entity's employees.
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