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Friday, December 15, 2017

Santa’s NLRB Early Christmas for Employers

An NLRB judge ruled that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were collectively joint employers and/or a single employer for purposes of the National Labor Relations Act (NLRA). Five Hy-Brand employees and two Brandt employees were discharged after they engaged in work stoppages based on concerns involving wages, benefits, and workplace safety. The work stoppages were found by an administrative law judge to constitute protected concerted activity under Section 7 of the National Labor Relations Act, and the discharges constituted unlawful interference with the exercise of protected rights in violation of Section 8(a)(1) of the Act.

On December 14, 2017, a very divided panel of the National Labor Relations Board agreed with the judge that Hy-Brand and Brandt are joint employers, but disagreed with the legal standard the judge applied to reach that finding. The judge applied the standard adopted by an Obama era Board majority in Browning-Ferris Industries of California, Inc.

In Browning-Ferris, Obama appointed Board majority had held that, even when two entities have never exercised joint control over essential terms and conditions of employment, and even when any joint control is not “direct and immediate,” the two entities will still be joint employers based on the mere existence of “reserved” joint control, or based on indirect control or control that is “limited and routine.”

The Trump appointed NLRB found that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations. Accordingly, the Trump appointed NLRB overruled Browning-Ferris and returned to the principles governing joint-employer status that existed prior to that decision.

Link to: Hy-Brand Order

Common Sense Counsel: every employer who uses staffing company employees and every franchisor should jump for joy with this decision. Prior to Browning-Ferris, the Board—applying common law principles (and common sense) held that the “essential element” when evaluating joint employer status “was whether the putative joint employer’s control
over employment matters is direct and immediate.” So this Christmas it is getting just a little more joyful to be an employer!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at or 334-246-2901. Blog at