On Thursday, March 9, 2017, the U.S. Court of Appeals for the
District of Columbia Circuit held long-awaited oral arguments in
Browning-Ferris International v. NLRB. The case will be
critical in defining joint employment under the National Labor
Relations Act, and could have significant ramifications throughout
the business community.
In August 2015, the National Labor Relations Board broadened the
test for determining joint employment from one where the purported
joint employer exercised "direct and immediate" control
over the other entity's employees, to a much looser
"indirect" control standard. The case originated
when the Teamsters Union sought to represent a staffing
agency's employees working at a recycling facility and named
the facility as a joint employer. The Board concluded the staffing
agency and its client were joint employers, relying on the
facility's indirect control and reserved contractual authority
over the supplied employees' essential terms and conditions of
employment. This decision upended decades of long-standing
The D.C. Circuit panel overseeing Thursday's oral arguments
included Judges Patricia Millett and Robert Wilkins, who were
appointed by former President Obama, and Senior Judge Raymond
Randolph, who was appointed by George H.W. Bush. The panel
extensively questioned both parties. When addressing the counsel
for the recycling facility, the judges paid particular attention to
the extent of the indirect control that it exerted over the
staffing agency's employees. Similarly, when questioning the
Board representative, the judges appeared skeptical that the new
indirect control test would provide clarity and a clearly
delineated test for joint employment. The judges also questioned
why the Board's decision listed factors that could be
considered for determining indirect control but provided no
guidance on how to weigh them.
While the questioning was pointed at times, the original Board
decision leaves many questions unanswered. A decision from the
court is not expected for several months. Of course, the
possibility remains that the decision, regardless of the outcome,
will be appealed to the Supreme Court. However, despite the
extensive attention this issue has seen in the courts and
legislatures, it remains unclear if the Justices would take up the
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