Dive Brief:
- The National Labor Relations Board’s inspector general has determined that Board member Bill Emanuel should not have participated in a recent decision because of a conflict of interest, Law360 reports. His participation in a case that reinstated an employer-friendly view of joint employer liability calls into doubt the board’s ruling, the agency watchdog said.
- Emanuel was an attorney with Littler Mendelson P.C. before joining the NLRB. The firm was involved with Browning-Ferris, the controversial 2015 decision that widened the circumstances under which a company can be considered a joint employer. In December 2017, however, President Trump appointees used a short-lived Republican majority to issue new decisions on several major issues, including joint employment. Emanuel should have recused himself from that case, known as Hy-Brand, and should not have participated in reversing the Browning-Ferris standard, the inspector general said.
- NLRB Chairman Marvin Kaplan said on Feb. 15 that the agency is “considering appropriate actions” regarding the Hy-Brand case and reviewing its recusal procedures, according to Bloomberg.
Dive Insight:
Browning-Ferris created a number of legal quandaries for employers. The reversal of the ruling was greeted with relief by businesses as a “return to common sense.”
But now, that key labor ruling may be in doubt. Some, including an Obama-era U.S. Department of Labor official, have called on the Board to immediately withdraw Hy-Brand. Others, however, have accused the inspector general of applying a double standard.
As NLRB considers how to address the inspector general's report, employers remain without much guidance on joint employment under the National Labor Relations Act.
