NLRB’s Updated Joint Employer Standard Rescinded – For the Moment

In a decision published February 26, 2018, the National Labor Relations Board vacated a Trump-era decision (Hy-Brand Industrial) concerning joint employer liability.

As we explained previously, in Hy-Brand Industrial, the NLRB reversed an Obama-era decision (Browning-Ferris) that made it easier to prove that multiple entities are joint employers.  The Hy-Brand decision was vacated because a Trump-appointed Board member was alleged to have a conflict of interest based on the fact that his former law firm represented a company in the Browning-Ferris case.  The conflict of interest charge was supported by a report from the Board’s Inspector General, who described the conflict as a “serious and flagrant problem.”  Reading between the lines, it appears that the current Board majority thought it best to “wipe the slate clean” rather than continue to deal with the controversy.  It is, however, fair to assume that when the issue comes up again, the Board will again reject the Obama-era standard, which was itself a departure from longstanding Board law.