NLRB Roles Back Contract Worker Protections

December 15, 2017 – Yesterday, the National Labor Retaliations Board overturned its 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), concerning joint-employer liability. In a 3-2 decision, the NLRB overruled a standard that had made it easier for workers to hold companies liable for questionable independent contractor, subcontractor and temporary employment agency working arrangements.

Prior to 2015, companies were found to be joint employers of workers hired by another business (e.g. temporary employment agency) only if they had “direct and immediate” control over working conditions. The 2015 Browning-Ferris decision expanded joint-employer liability to include work arrangements in which the company had “indirect or unexercised control,” such that the employer need only possess the authority to control the working conditions, even if it did not exercise the control. The decision was hailed as a victory for workers’ rights for closing loopholes used by corporations to avoid paying fair wages, as well as taxes and benefits under Social Security, Medicare, unemployment and worker’s compensation laws, and avoid liability under state and federal anti-discrimination laws. The NLRB saw it as a necessary response to a rapidly growing temporary work force that now had potential control by multiple businesses over their working conditions.

Yesterday’s decision reverses contract worker protections and returns to a strict test for company/employer liability. While some business groups see this as a return to a clearer joint-employer definition, workers’ rights advocates see this as a blow to efforts to reign in joint-employer abuse by companies who exploit workers for their own financial gains. 

(This is an update to previous post about the 2015 Browning-Ferris decision that can be found here: https://www.baillonthome.com/blog/employers-are-now-responsible-contract-and-temporary-workers.)

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