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NLRB Vacates Recent Joint-Employer Decision

The National Labor Board unanimously vacated its December joint-employer ruling on February 26, meaning restaurant operators around the country will once again be subject to the 2015 Browning-Ferris test for determining joint employment.

The NLRB acted following an internal agency report which found that a potential conflict-of-interest involving a Trump-appointed board member had tainted the vote. The December ruling had reversed an Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors. The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris.

As a result of this week’s action, businesses including foodservice chains, will find themselves potentially liable for workplace law violations at their franchisees, despite the fact many are independent or privately owned.

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