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Client Alert: NLRB Reverses 2015 Browning-Ferris Joint Employer Decision

Staffing companies, PEOs, and other human capital agencies have benefitted from the conservative new appointees to the National Labor Relations Board (NLRB). If you read my post on workplace changes to expect with President Trump, then this post won’t be a surprise.

Yesterday, the NLRB issued a 3-2 decision reversing the Board’s standard for joint employment in collective bargaining that it issued in the 2015 Browning-Ferris decision. That controversial decision by the liberal leaning Board overturned years of precedent and significantly expanded the definition of joint employment.  The decision spurred legislation (H.R. 3441, the Save Local Business Act) to overturn the expansive definition, and replace it with a far more narrow and proper definition of joint employment.

The Board’s decision yesterday accelerated the process and effectively returned the analysis to the narrow definition. Interestingly, in the decision, the Board found the two companies to be joint employers, and then ruled as follows:

We agree with the judge that Hy-Brand and Brandt are joint employers, but we disagree with the legal standard the judge applied to reach that finding. The judge applied the standard adopted by a Board majority in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery (Browning-Ferris). In Browning- Ferris, the Board majority 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.” We find that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, it 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, we overrule Browning-Ferris and return to the principles governing joint-employer status that existed prior to that decision….By overruling Browning-Ferris, we also make the Board’s treatment of joint-employer status consistent with the holdings of numerous Federal and state courts. (footnotes and citations omitted, emphasis added).

Here is a link to the NLRB press release

For additional information, please contact Jeffrey C. Miller or any other member of BMD’s L+E team.

CLIENT ALERT: BWC issuing $1.5 billion in premium refunds to Ohio employers

The Ohio Bureau of Workers’ Compensation (BWC) has now reported that the Board of Directors approved a proposal to send $1.5 billion of the agency’s revenues to Ohio employers covered by the BWC system.

CLIENT ALERT: Medicare Providers having multiple locations should verify and revalidate their address information to avoid claim denials

MLN Matters SE19007 “Activation of Systematic Validation Edits for OPPS Providers with Multiple Service Locations” notifies providers that Medicare is now requiring the exact match of all addresses for practice locations that are listed on provider claim submissions to Medicare.

CLIENT ALERT: Capitalizing on New Opportunity Zone Incentives to Spur Economic Development

CLIENT ALERT: New Opportunity Zone Incentives Promise to Spur Economic Development

CLIENT ALERT: HB 159 - Regulatory Indemnity Provisions in Public Works Design Contracts

Representative Louis W. Blessing III (R-Colerain Township) recently introduced HB 159 to regulate the use of indemnity provisions in professional design contracts related to public improvements. The purpose of the proposed legislation is to prohibit public agencies from requiring design professionals to indemnify them from claims which are not attributable to negligent or other wrongful conduct on the part of the design professional.

CLIENT ALERT: Construction Law Update: Communication is Key! And Other Lessons Learned From A Recent Public Project Court Decision

In a recent decision, the Ohio Court of Claims entered a $2.2 million judgment in favor of the general trades contractor, and against a public university, in connection with an on-campus renovation project. Mid American Construction, LLC v. Univ. of Akron, Ct. of Cl. No. 2016-00685JD, 2018-Ohio-4513.