{"id":11026,"date":"2026-06-23T20:45:07","date_gmt":"2026-06-23T20:45:07","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/d-c-circuit-to-consider-once-again-the-nlrbs-browning-ferris-joint-employer-standard\/"},"modified":"2026-06-23T20:45:07","modified_gmt":"2026-06-23T20:45:07","slug":"d-c-circuit-to-consider-once-again-the-nlrbs-browning-ferris-joint-employer-standard","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/d-c-circuit-to-consider-once-again-the-nlrbs-browning-ferris-joint-employer-standard\/","title":{"rendered":"D.C. Circuit to Consider Once Again the NLRB\u2019s Browning-Ferris Joint Employer Standard"},"content":{"rendered":"\n<div id=\"contentSummaryCollapse\" style=\"--intro-p-height: 10.3125rem;\">\n<div class=\"inner-collapse\">\n<p>There has been a new twist in the long-running legal battle over the NLRB\u2019s joint employer standard.\u00a0On April 6, the D.C. Circuit reinstated to its docket an appeal brought by waste management company Browning-Ferris Industries that challenged the NLRB\u2019s 2015 decision in <em>Browning-Ferris Industries<\/em>, 362 NLRB 186 (2015). The D.C. Circuit held that \u201cextraordinary circumstances\u201d justified the appeal\u2019s revival; however, the court stayed its consideration of the appeal pending the NLRB\u2019s decision with respect to a related matter, <em>Hy-Brand<\/em>, which is described below.<\/p>\n<p>The history of the two joint-employer decisions is as follows:<\/p>\n<ul>\n<li>In 2015, the NLRB decided <em>Browning-Ferris Industries<\/em>. The decision abandoned the Board\u2019s long-standing test that an entity must both possess and exercise direct control over employees\u2019 terms and conditions of employment in order to be considered a joint employer.\u00a0Instead, the Board held that, \u201cto better effectuate the purposes of the [National Labor Relations Act] in the current economic landscape,\u201d it would consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.\u00a0You can read our memorandum on the <em>Browning-Ferris <\/em>decision here.\u00a0Browning-Ferris appealed the decision to the D.C. Circuit.\u00a0<br \/>\u00a0<\/li>\n<li>While Browning-Ferris\u2019 appeal was pending, a newly recomposed NLRB decided <em>Hy-Brand Industrial Contractors, Ltd. et al.<\/em>, 362 NLRB 186 (2017), which overturned <em>Browning-Ferris<\/em>. You can read our blog post on the December 14 <em>Hy-Brand <\/em>decision here.\u00a0On December 22, at the NLRB\u2019s request, the D.C. Circuit remanded Browning-Ferris\u2019 appeal to the agency.<br \/>\u00a0<\/li>\n<li>Then, on February 26, 2018, the NLRB vacated its decision in <em>Hy-Brand<\/em>, thus reinstating the <em>Browning-Ferris<\/em> standard. The NLRB Inspector General concluded that Board Member William Emanuel should not have cast a vote in the decision because his former law firm had represented one of the unsuccessful litigants in <em>Browning-Ferris<\/em>.\u00a0Emanuel had voted with the 3-2 majority.\u00a0You can read our blog post on the <em>Hy-Brand <\/em>vacatur here.\u00a0<br \/>\u00a0<\/li>\n<li>On March 1, the NLRB asked the D.C. Circuit to reinstate its appeal and restore the case to the docket, which the court did on April 6.<br \/>\u00a0<\/li>\n<li>Meanwhile, a highly unusual development occurred in the <em>Hy-Brand <\/em>matter. On April 5, the NLRB\u2019s General Counsel\u2019s office filed a brief in support of Hy-Brand Industrials\u2019 motion for reconsideration. Patricia McGruder, counsel in the office of General Counsel Peter Robb, argued in the motion that the Board should have \u201callow[ed] Member Emanuel to make his own recusal determination in the first instance\u201d and that it was \u201ca seemingly unique event in board history\u201d for the other Board members to \u201cdecide[] on their own to disqualify [Board Member Emanuel] from participating in the case.\u201d<\/li>\n<\/ul><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"<p>There has been a new twist in the long-running legal battle over the NLRB\u2019s joint employer standard.\u00a0On April 6, the D.C. Circuit reinstated to its docket an appeal [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":11027,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[7719,610,2666,371,370,4438,3655],"class_list":["post-11026","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-browningferris","tag-circuit","tag-d-c","tag-employer","tag-joint","tag-nlrbs","tag-standard"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/11026","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=11026"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/11026\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/11027"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=11026"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=11026"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=11026"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}