NLRB reverses Obama-era joint employer doctrine

Continuing its trend of reversing Obama-era NLRB decisions, the Trump Board has reversed one of the most controversial, the Board’s 2015 decision, Browning-Ferris Industries, in which the Board had held that mere proof of indirect or even potential control was sufficient to create a joint employer relationship. In this decision, Hy-Brand Industry Contracts, Ltd., the Board returns to requiring proof of actual control by the putative joint employer.

The impact of the Board’s decision on the pending legislation regarding the Joint Employer doctrine, previously reported in this blog is yet to be determined.

Source: Hy-Brand Industry Contractors, Ltd., 365 NLRB No. 156 (12/14/17).

UPDATE: On February 26, 2018, the Board vacated the foregoing decision in Hy-Brand due to a purported conflict of interest bearing upon one of its members. On June 5, 2018, the Board announced it will, instead, issue a proposed rule addressing the Joint Employer doctrine. On June 6, 2018, the Board then refused to reinstate the foregoing decision, apparently leaving the issue instead to be determined as part of the forthcoming rulemaking process.

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