On December 14, 2017, in a 3-2 decision by its then Republican majority, the National Labor Relations Board (NLRB) in the Hy-Brand Industrial Contractors case ruled that, to be classified a "joint employer" of another company’s employees under the National Labor Relations Act, a business must have a direct and immediate control over the employees. The decision overturns the Obama Board’s highly controversial and AGC-opposed 2015 ruling in Browning-Ferris Industries and effectively returns the joint employment standard to the prior standard.
In Hy-Brand, the Board said the Democratic majority in Browning-Ferris overstepped its authority by altering the legal definitions of employment and by holding that a company could be a joint employer even if it had only indirect or reserved control over the employees in question. AGC agrees and submitted an amicus brief with other associations supporting Browning-Ferris’s appeal of the 2015 decision in the U.S. Court of Appeals for the District of Columbia Circuit. In light of the Hy-Brand decision, the appeals court remanded the case back to the NLRB on December 22, 2017.
NLRB Chairman Philip A. Miscimarra’s term officially ended on December 16, 2017, leaving the Board currently comprised of two Republican and two Democratic members. Republicans will not regain their majority until a third Board member is nominated and confirmed. Until then, the Board is not expected to consider controversial cases.
For more information, contact Denise Gold at goldd@agc.org or 703-837-5326 or Claiborne Guy at claiborne.guy@agc.org or 703-837-5382