DC Circuit Court picks up joint employer case, citing 'extraordinary circumstances'
- The U.S. Circuit Court of Appeals for the D.C. Circuit has granted a motion to reconsider Browning-Ferris after previously remanding it to the National Labor Relations Board (NLRB). The court cited "extraordinary circumstances" in making its decision (see documents below).
- The court also noted that it would be holding the case "in abeyance pending prompt disposition by the Board of the pending motion for reconsideration in Hy-Brand," the case in which NLRB overturned the Obama-era Browning-Ferris joint employment standard.
- NLRB vacated Hy-Brand after many questioned the validity of its ruling due to Board member Bill Emanuel's relationship with Littler Mendelson P.C., a firm involved in the Browning-Ferris case. The general counsel's office has now asked the Board to withdraw its decision to vacate the ruling in Hy-Brand, calling it "an extraordinary three-member ruling without precedent in the annals of Board law."
Now that the D.C. Circuit has agreed to pick up the case once again, the drama surrounding Browning-Ferris and its "indirect control" joint employer doctrine continues. It's unclear whether the Board will accede to the general counsel's request and reinstate Hy-Brand, but it's possible that all eyes will once again be on the D.C. Circuit.
The Save Local Business Act, a legislative fix to the joint employer issue, remains in the Senate. Business groups have pushed Congress to move on the bill in order to codify the "direct control" joint employer standard, the opposite conclusion of Browning-Ferris. For now, however, Browning-Ferris remains the joint employment standard on the books.
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