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NLRB ethics official vacates recent joint employment ruling; board returns to 2015 standard

NLRB ethics official vacates recent joint employment ruling; board returns to 2015 standard

February 27, 2018

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The National Labor Relations Board yesterday vacated a December decision that had reversed a joint employment standard set by the NLRB in 2015 during the Obama Administration. A designated agency ethics official determined NLRB member William Emanuel should have been disqualified from participating in the December proceeding.

Emanuel should have been disqualified because his former law firm represented Leadpoint, a staffing services firm that was party to the overturned 2015 case, Reuters reported.

In its 2015 decision, the NLRB ruled Browning-Ferris Industries of California was a joint employer of workers employed by staffing firm Leadpoint Business Services at BFI’s Milpitas, Calif., recycling site. The board cited indirect and direct control that BFI possessed over key employment terms and conditions of the Leadpoint workers.

However, in the December 2017 ruling – which came in a separate case involving the firing of seven workers by Hy-Brand Industrial Contractors and Brandt Construction – the NLRB returned to a previous standard for determining joint employment that requires proof that a company has exercised direct control over another company’s workers.

“The NLRB’s decision to vacate its own recent ruling on joint employer liability now puts greater pressure on the Senate to pass the Save Local Business Act,” said Trey Kovacs, a policy analyst at the Competitive Enterprise Institute. ”This turn of events illustrates how no decision by the Board is permanent and why it is crucial for Congress to set a standard into law instead of letting regulators decide. Without a permanent legislative fix, the overly broad and vague Obama-era Browning-Ferris joint employer standard is once again a threat to entrepreneurs and workers nationwide.”