Federal Judge: NLRB “Dropped the Ball” In Issuing Joint Employer Ruling

March 9, 2017

The D.C. Circuit Court of Appeals heard oral arguments today in a case that challenges the National Labor Relations Board’s 2015 decision to broaden the definition of “joint employer.”

In issuing its decision in Browning-Ferris Industries (BFI), the NLRB overturned 30 years of legal precedent that protected businesses from liability for employees over which they do not have actual or direct control. The revised, ambiguous standard – based on indirect and even reserved control – made employers potentially liable for employees they do not even employ.

Confused? You’re not alone. Today, the Honorable Patricia Millett, a federal judge presiding over the case, described the situation as follows:

Presiding Judge Patricia Millett touched on the uncertainty many businesses have expressed over how to apply the board’s ruling — suggesting the court may provide answers. She said the NLRB “dropped the ball” when it declined to flesh out the details of a joint employers’ responsibilities during collective bargaining, calling it a “mystery.”

References to a “mystery” and “[dropping] the ball” do little to strike confidence in the NLRB’s revised joint employer standard, and the fact remains that this legal gray area remains a major problem for small business owners throughout the United States. If a judge from the second most powerful court in the country cannot understand the NLRB’s test, how can we expect the average small business to figure it out?

Until the NLRB’s joint employer doctrine is fixed, small businesses will continue to face the challenge of weeding through the web of uncertainty. Main Street businesses need clarity, which is why the CSLB will continue fighting for Congressional action on this issue.