Trouble for the NLRB’s joint employer doctrine? 

The NLRB famously expanded its joint employer doctrine in its 2015 Browning-Ferris decision. There, the Board effectively eliminated the requirement that a company have actual control to be a joint employer, in other words, it eliminated its decades old “direct and immediate” control requirement. Instead it can be enough now — at least according to the Board — if the company has “reserved” some form of control, that isn’t exercised, even if “indirect.” The Board’s ruling in Browning-Ferris is currently on appeal at the DC Circuit.

Unwilling to wait for a decision, Congress is considering a House Bill, the Save Local Business Act, that would jettison the NLRB’s “reserved” or “indirect” standard and reinstate the “direct and immediate” standard, not only for purposes of the NLRA (the federal labor law governing union relatioins) but also the FLSA (the federal wage-hour law).

Here the DC Circuit considered a slightly different aspect of the NLRB’s new joint employer doctrine (its “share or codetermine” standard). While the DC Circuit went out of its way to say it was expressing no opinion on the Browning-Ferris issue (“direct and immediate”), it held the Board had improperly laxened its “share or codetermine” caselaw, reversed and remanded the case to the Board to reconsider.

Source: NLRB v. CNN Am. Inc.