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

Client Alert

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.


Key Healthcare Provisions in Ohio’s 2026–2027 Budget

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Providers Beware: Court Sides with Insurers in No Surprises Act Arbitration

On June 12, 2025, the Fifth Circuit ruled in favor of Aetna and Kaiser in two lawsuits brought by air ambulance providers challenging how insurers calculated payments under the No Surprises Act’s Independent Dispute Resolution process. The court held that unless there is clear evidence of fraud or serious misconduct, IDR decisions will stand, reinforcing the finality of the arbitration process.

Introducing HB 281: Enforcement of Federal Immigration Laws in Ohio Hospitals

House Bill 281, introduced on May 20, 2025, would require Ohio hospitals to allow law enforcement, including federal immigration agents, to enter facilities and enforce immigration laws. The bill mandates that hospitals comply with information requests and adopt formal policies, raising significant concerns about patient privacy and access to care for immigrant communities.

Parental Consent May Soon Be Required for Minor Mental Health Services in Ohio

HB 172 proposes repealing a provision in Ohio law that allows minors age 14 and older to consent to limited outpatient mental health services without parental involvement. The bill would require parental consent for all such care and remove related language from other sections of the Ohio Revised Code.

Community Behavioral Health Providers - Supervisor Pricing Changes Begin July 1 [Corrected Date]

Effective June 16, community behavioral health providers wishing to receive reimbursement at the supervisor rate must add the HP or HT Modifier to fee-for-service (FFS) claims. Find out about the new guidelines.