Browning-Ferris Industries of California, Inc. v. NLRB

Case Updates

Divided D.C. Circuit panel affirms NLRB’s articulation of NLRA’s joint-employer standard as including both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment, but rejects NLRB’s application of its indirect-control inquiry in this case, and thus granted the petition for review in part and denied it in part, and remanded for further proceedings.

Click here to view the opinion.

The U.S. Chamber, in a brief with the Retail Litigation Center, Inc., filed an amicus brief urging the D.C. Circuit to overturn the National Labor Relations Board’s (“NLRB”) decision expanding the definition of “joint employer” and imposing collective bargaining and many related obligations on companies that previously fell outside the scope of the National Labor Relations Act (“NLRA”). The brief argued that the Board’s new definition plainly conflicts with the definition that has been forged under the common law of agency, which Congress intended to supply the definition for “employer” in the NLRA. Specifically, the Board’s expansive definition is incorrect because it would allow an entity without actual or direct control or direct supervision to qualify as a joint employer. In addition, the Chamber explained that under D.C. Circuit precedent, that court owes no deference to the Board’s misguided interpretation of common law and should review the decision de novo.

Adam G. Unikowsky and Samuel C. Birnbaum of Jenner & Block LLP served as co-counsel for the amici.