NLRB Vacates Recent Joint-Employer Decision

In December, 2017, the Board issued a wave of decisions overturning significant pro-worker precedent. One of these decisions was ­Hy-Brand, where the Board abandoned its recently updated joint-employer standard to return to the narrower analysis in effect before the Board’s 2015 Browning-Ferris decision.

On February 27, 2018, the NLRB vacated this decision, stating that “the overruling of the [Browning-Ferris] is of no force or effect.” The Board took this unusual action after its agency ethics office found that Board Member Emanuel should have been recused from participating in the ­Hy-Brand case.

On February 9, 2018, the Board’s Inspector General (“IG”) issued a report stating that there were “serious and flagrant” problems with the Board’s deliberative process and administration of the Act with respect to Hy-Brand. Specifically, the IG found that because the Board’s Hy-Brand deliberation was in effect a continuation of the Browning-Ferris case, “Member Emanuel should have been recused from participation in deliberations leading to the decision to overturn Browning-Ferris.” Leadpoint, a party in the Browning-Ferris case, is represented by Member Emanuel’s former law firm.

Citing the IG report, the Board vacated its Hy-Brand decision, reinstating the 2015 Browning-Ferris joint-employer standard. The NLRB subsequently asked the D.C. Circuit to resume processing the appeal given the IG report’s findings. Browning-Ferris disagreed, telling the court, “At a minimum, the Board’s request that the Court recall its mandate is premature.” The D.C. Circuit has recalled the case.