Congress Takes Shot at Browning-Farris

by Doug Chartier

Between the courts and Congress, the days of the National Labor Relations Board’s expanded joint employer standard might be numbered.

On July 27, Rep. Bradley Byrne of Alabama introduced a bill that would tighten up the joint employer standard under the National Labor Relations Act and Fair Labor Standards Act. If passed, it would torpedo the NLRB’s broader interpretation that made more employers liable for labor violations committed by their subcontractors and franchisees.

The bill is a direct counter to the NLRB’s landmark 2015 decision in Browning-Ferris Industries. In that decision, the board determined that an entity has sufficient control over another entity’s workers to be considered a joint employer not only if it exercises control over the terms and conditions of their employment, but also if it has merely “reserved the authority to do so.”

Under the NLRB’s reading of the NLRA and FLSA, many franchisors can be found jointly liable for their franchisees’ labor violations regardless of whether they actually exert control over the terms and conditions of the latter’s workers. Many employers could likewise be considered joint employers with their subcontractors or staffing agencies along those lines.

To read this story and other complete articles featured in the August 7, 2017 print edition of Law Week Colorado, copies are available for purchase online.