The now Republican majority on the National Labor Relations Board (NLRB) was on a roll in December and is not hesitating to revise standards set by its Democratic predecessors.
In a 3-2 vote along party lines, the NLRB overturned the 2015 Browning-Ferris standard for joint employment under the National Labor Relations Act (NLRA). To recap, back in August 2015, an Obama-era Board majority held that an employer could be considered a joint employer even if it only had reserved or indirect authority over employees. In December’s Hy-Brand Indus. Contractors, Ltd. decision, the majority overturned that standard, describing it as an overreach of statutory authority that created far-reaching negative consequences. In its decision, the NLRB ultimately reinstated the pre-Browning-Ferris standard. Now, in order to have joint-employer status, an employer must have exercised direct and immediate control over essential employment terms, and limited and routine control will not be sufficient.
In a similar 3-2 partisan vote, the Board also overturned the 2004 Lutheran Heritage Village-Livonia (Lutheran Heritage) standard for determining whether an employer’s rule or policy unlawfully violates an employee’s rights under the NLRA. Under the Lutheran Heritage standard, rules that did not explicitly restrict NLRA protected activity would be held unlawful if employees would “reasonably construe” the rule to prohibit protected activity. In a case involving the Boeing Company, the majority overruled the “reasonably construe” standard, and replaced it with a new analysis. Now, instead of only considering the employee’s perspective, a reviewing Board can consider the employer’s justifications for the rule – to the point where the reasons for the rule could even outweigh its tendency to interfere with an employee’s Section 7 rights.
The rules employers must abide by haven’t changed, but the criteria used by the Board in evaluating which employers must abide by them – and whether they are doing so – seem to be changing in favor of employers.