INSIGHT: Off to the Races? After a Tumultuous Start to the Trump Era, the NLRB Looks to Make Major Changes

December 12, 2018

I. Joint Employer Drama

Without question, the most closely watched issue before the National Labor Relations Board in recent years has been the Obama Board’s dramatic expansion of the joint employer doctrine, and the current Board’s efforts to return to a narrower standard. While most Board watchers expected a near-immediate reversal of the broad ‘‘Browning-Ferris’’ rule following the election of President Donald Trump, the road to effecting this change has been surprisingly bumpy. As discussed below, change does now appear to be on the horizon, although new stumbling blocks may still arise.

A. Browning-Ferris Effects Dramatic Change

The Board’s 2015 decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), was one of the most significant, and highly controversial, decisions in years. In the case, a divided Board cast aside its long-standing joint employer test in favor of a highly union-friendly standard that promised to expand greatly the number of employers subject to collective bargaining and other obligations under the NLRA.

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