Monday, August 7, 2017

D.C. Circuit on Joint Employers (Sort Of)

On Friday, the D.C. Circuit issued its opinion in NLRB v. CNN. One of the issues was whether the NLRB applied the correct joint employer test.

As readers of this blog know, the NLRB announced a new "refined" standard for joint employment in Browning-Ferris. The new test no longer requires the putative joint employer to actually exercise direct and immediate control over the workers - the right to exercise even indirect control will do. In the CNN case, the NLRB applied something like the Browning-Ferris standard. There's just one problem . . . it decided the CNN case before Browning-Ferris.

So, the D.C. Circuit remanded the CNN case back to the NLRB concluding that it had inappropriately applied a new standard without (at the time) having properly considered application of a new standard:
Not official use.
In Browning-Ferris, the Board carefully examined three decades of its precedents and concluded that the joint-employer standard they reflected required “direct and immediate” control. It then criticized that standard. Thereafter, it forthrightly overruled those cases and set forth, as “a new rule” for identifying joint employment, a standard quite similar to the one the Board in the case before us claimed had been the standard all along.This an agency may do, as long as it provides a reasoned explanation for its change of course . . . . 
In the case on review here, however, the Board did none of those things. In characterizing the prevailing joint-employer standard, it did not grapple with its precedents in the manner of Browning-Ferris . . . . 
“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.” Because the Board crossed that line here, we must set aside its finding that CNN was a joint employer.
(citations omitted). Welp, this sets up the pending appeal (also before the D.C. Circuit) in Browning-Ferris quite nicely. Unfortunately, it doesn't give us much to go on in analyzing joint employment. Even the D.C. Circuit decision in Browning-Ferris may not give us much finality - between a potential SCOTUS appeal, and a new Trump NLRB, the standard may yet evolve further.

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