NLRB Flips on Browning – Ferris

New Republican-majority board reverses joint-employer standard, among others

The National Labor Relations Board just issued a handful of major policy reversals on employer-employee relations, and it might just be getting warmed up.

Now made up of a 3-2 majority of Republicans, the NLRB has begun rolling back decisions it made during the Obama administration that many employers saw as tipping the scales toward unions and employee advocates. Among other moves, the NLRB reversed its view of joint employer liability, returning to the direct control test it used prior its 2015 decision in Browning-Ferris Industries. In other rulings, the board also lightened employers’ loads in terms of workplace rule liability and collective bargaining obligations.

“It’s an absolute avalanche of positive decisions for employers,” said Patrick Scully, a member of Sherman & Howard’s labor and employment practice in Denver. While the December decisions are “the biggies” in terms of what the Trump administration’s board might do to restore its pre-Obama precedent, employers can expect more rulings to come along those lines, Scully said.

On Dec. 14, the NLRB overruled its Browning-Ferris decision, which had broadened the defi nition of joint employers for the purpose of liability.

To read this story and other complete articles featured in the December 26, 2017 print edition of Law Week Colorado, copies are available for purchase online.