Hy-Brand Decision Vacated as Joint Employer Liability Standard

In light of a recent report from National Labor Relations Board (NLRB) Inspector General David Berry, the board vacated the Hy-Brand decision, which used a higher standard for determining joint employment. The move re-establishes the Obama-era Browning-Ferris decision as the model for determining joint employer liability. Reverting to the Browning-Ferris standard makes it easier for the NLRB to find joint employer status.

In December 2017, the Hy-Brand Industrial Contractors decision reversed Browning-Ferris (2015), which found two entities to be joint employers when one entity had the right to exercise authority over the other entity’s employment terms and conditions, even if the authority was never exercised.

Last week, Inspector General Berry criticized the NLRB for the process used in reaching its decision in Hy-Brand. Among other things, Bill Emanuel improperly participated in that case. Emanuel was a partner at the firm that represented a contractor when the Browning-Ferris case was in front of the NLRB in 2015. On Feb. 9, Berry stated as part of his report, “I have determined that there is a serious and flagrant problem and/or deficiency in the Board’s administration of its deliberative process.”