The US Circuit Court of Appeals for the D.C. Circuit on July 29 ruled the National Relations Labor Board in 2020 improperly applied its standard to conclude that Browning-Ferris Industries of California Inc. wasn’t a joint employer and didn’t have to bargain with workers supplied by a staffing company. The court said the board failed to properly explain its reasoning for that outcome, remanding the case back to the board.
The Browning-Ferris case, initially about worker unionization rights, became a case about joint-employer status. The initial 2015 ruling in Browning-Ferris expanded the definition of joint employer to companies with indirect control over workers. The standard went through multiple reversals before the Trump administration developed a final rule codifying the stricter joint-employer standard based on direct control.
Meanwhile, the Browning-Ferris case itself has still been subject to appeals; with the Circuit Court’s ruling, the case is remanded back to the NLRB. For its part, the NLRB made official in its Spring Rulemaking Agenda [1] its intention to tackle the final rule for determining joint-employer status under the National Labor Relations Act. Because the Trump administration issued a final rule on joint-employer classification, further changes to the standard can now only come through another final rule and not a case ruling.