Obama-era 'joint employer' definition back in effect

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The National Labor Relations Board seal
The National Labor Relations Board seal

The definition of “joint employer” is reverting to one established during the Obama administration after the National Labor Relations Board announced Monday that one of its members had a potential conflict of interest and should not have voted in a related case.

The NLRB vacated its December ruling in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., meaning that the legal standard for joint employment defined in a 2015 case, Browning-Ferris Industries of California Inc., is in effect once again.

That standard holds that a company must exhibit only the potential to exert control over terms and conditions of employment, rather than have “direct and immediate” control as had been the previous standard, to be considered responsible for decisions related to worker wages and working conditions, including labor law violations.

Another case

Also on Monday, the U.S. Supreme Court took on a case that could weaken public unions' dues-collection efforts and ultimately limit their power.

Organizations representing senior living operators had objected to the revised definition, saying that it could negatively affect management-employee relations and resident care. The new definition was thought to apply to senior living operators that use temporary or contract workers as well as operators that have franchises, among others.

NLRB Inspector General David Berry said in a Feb. 9 report that board member William Emanuel should not have cast a vote in the Hy-Brand case, which in effect overturned Browning-Ferris, because he formerly had worked for a law firm that had represented one of the companies in the Browning-Ferris case. Emanuel was appointed by President Trump.

“Hy-Brand was merely the vehicle to continue the deliberations of Browning-Ferris and that as a result, Mr. Emanuel should have recused himself rather than voting on the case,” Berry wrote.

The NLRB said it agreed with a subsequent decision by its ethics official that Emanuel should have been disqualified from voting in Hy-Brand. Emanuel did not participate in the decision announced Monday, the board said.

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