In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship. (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful level of control.
But what’s happened since then? What happens next? What should employers expect in 2017 regarding joint employment under the NLRA?
Let’s start by looking at the case itself. Browning-Ferris is on appeal, with oral argument scheduled in the D.C. Court of Appeals on March 9, 2017 (that’s also National Crabmeat Day, for you crustacean lovers). So that decision should clear things up, right? Wrong.
First, the Court of Appeals is unlikely to reverse the NLRB. The Court of Appeals must generally defer to the Board’s interpretation of the NLRA, unless it determines that the Board acted arbitrarily or contrary to the facts.
Second, even if the Court of Appeals were to reverse Browning-Ferris, that decision will be as useless to you as an alarm clock is to my teenage daughter.
Me: It’s noon. Get up. Why didn’t you set an alarm?
Her: Why didn’t you wake me? Didn’t I tell you how much studying I have to do? How could you let me sleep so late? Now it’s your fault if I get a bad grade on my test tomorrow.
The Court of Appeals’ decision is useless because the NLRB routinely ignores Courts of Appeals. Each Court of Appeals governs only a small segment of the country. The Board oversees labor relations for the whole country. Unless the Supreme Court rules on an issue, the Board is free to do as it pleases. The current Board isn’t going to change its view of joint employment.
Besides, even if Browning-Ferris were reversed, the Board doubled down on its new view of joint employment in the Miller & Anderson case, decided in July 2016. (Read more here.) The new joint employment standard is entrenched in the current NLRB’s mindset.
So where does that leave us? Trump will get this reversed, right? Well, maybe, but not for awhile.
The NLRB, when fully stocked, has five members. Each is appointed to a five-year term. The current Board has two Democrats, one Republican, and two vacant seats.
Trump can fill those two vacancies, but that won’t happen right away. With roughly 1300 executive branch positions to be appointed by the President and approved by the Senate, this will take some time and is almost certainly not one of the new President’s highest priorities.
Let’s assume both vacancies are filled in the Spring or early Summer 2017, then approved by the Senate by mid-2017. That will create a 3-2 Republican majority on the Board for the first time since 2007.
(In December 2017, Republican member Miscimarra’s term expires, but it is a safe bet he will be replaced by another Republican. The next scheduled vacancy after that will not occur until August 2018.)
Once a 3-2 Republican majority is in place, the right case must be brought to the full Board. In all likelihood, that means a case in which an ALJ found joint employment under circumstances where the hiring party exercised only minimal control (or maybe just retained the right to exercise some control). With the chance to review that decision, the NLRB will have its first opportunity to reverse Browning-Ferris and revert back to the standard for joint employment that the Board had followed for the previous 30 years.
It is highly unlikely that happens before 2018. Too many things must happen first.
The Board’s General Counsel is not likely to speed things along either. The General Counsel is responsible for the investigation and prosecution of unfair labor practice cases. The GC is independent from the Board and serves a four-year term. The current GC, Richard F. Griffin Jr., is a pro-union Democrat who supports the broad Browning-Ferris standard for joint employment.
His term expires in November 2017, at which point President Trump will be able to appoint a successor, again with the approval of the Senate.
The bottom line. The bottom line for joint employment under the NLRA is that nothing is likely to change before 2018. Sometime in 2018 or 2019, however, it does seem likely that the right case will be presented to the right composition of Board members, at which point the pre-Browning-Ferris standard for finding joint employment will probably be re-established.
Until then, Browning-Ferris remains the law.
Editor’s Note: For more information, tips, and developments on issues related to joint employment and independent contractor misclassification issues, follow Todd Lebowitz’s blog, at whoismyemployee.com.