News

DC Appeals court upholds NLRB's joint employer test, public comment open to Jan 14

January 7, 2019

Any franchised restaurant brand returned from the holidays last week to learn of new action in the Browning-Ferris Industries v. NLRB case that has had so many repercussions for foodservice brands. 

The Washington D.C. Circuit Court of Appeals on Dec. 28, upheld the controversial joint-employer standard spelled out in the 2015 Browning-Ferris decision on Browning-Ferris Industries of California Inc. v. NLRB,  according to the NLRB's case decisions announcements distributed today. 

In its December decision, the appellate court considered the very question of joint employment of a worker, like that of a brand and franchisee. Previously, the NLRB ruled that since some brand's had relatively significant control over franchise employees, they were also potentially liable for actions affecting that employee.

But early on in the Trump administration, that stipulation eased until the NLRB Inspector General reported one of the case's deciding board members held stock in one of the parties law firms, so again brands could be considered joint employers. 

As this website reported, there has been a big industry push to eliminate the original Browning-Ferris Industries decision. But a three-judge panel on Dec. 28 moved in its own direction. 

In its decision, the court said, "The Board's conclusion that it need not avert its eyes from indicia of indirect control —including control that is filtered through an intermediary — is consonant with established common law."

The court also said that the NLRB failed to specify what it considers "indirect" control, so the issue was sent back to the board for further action. Consequently, the proposed joint-employer rule making remains open for public comment until Jan. 14, 2019.