New York partner Jerry Hathaway was recently quoted in a Bloomberg BNA article titled, “NLRB's Joint Employment Theory Faces Key Court Test.” The article discusses a recent case, Browning-Ferris Indus. of Calif., Inc. v. NLRB, in which Browning-Ferris appealed a new standard set by The National Labor and Relations Board (NLRB) that states companies can be classified as joint employers if they “share or codetermine” the employment terms of a group of workers. This new “test,” which overrules 30-year-old precedents that companies should share legal responsibility for employees only if they exercise “direct and immediate control” over the workers, has been called a threat to franchising and other business models.
The NLRB argued it arrived at a reasonable interpretation of federal law that accommodates the increasing use over the past three decades of subcontractors, temporary agencies and contingent workers.
In the article, Jerry states that he is optimistic that the board's Browning-Ferris test of joint employer status will be “toast” within two years.
Jerry told Bloomberg BNA that he hopes the D.C. Circuit will reverse the board for the reasons expressed by now Acting Chairman Philip A. Miscimarra, who dissented from the Browning-Ferris ruling when he was a member of the board. If the D.C. Circuit fails to reverse the NLRB, Hathaway said he expects a new Republican majority on the board will step in and return the board to its earlier standard.