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January 3, 2019
A federal appeals court has sent the Browning-Ferris joint employment debate back to the National Labor Relations Board (NLRB), Waste Dive reports.
In a 2-1 opinion, the U.S. Circuit Court of Appeals for the D.C. Circuit said that it was permissible for the board to create a standard that considered both an employer's reserved right to control and its indirect control over employees' terms and conditions of employment, Waste Dive notes. It also held, however, that the board didn't apply that standard properly in Browning-Ferris and remanded the case.
Browning-Ferris Industries was at the center of NLRB’s 2015 decision that changed the long-standing definition of what constituted a joint-employer. This ruling directly applied to and impacted the waste and recycling industry. In November, the National Waste & Recycling Association announced it supports the NLRB’s regulatory proposal to establish a standard for determinations of joint-employer status.
Waste Dive has more details:
While the D.C. Circuit has approved the Obama board's broad interpretation of joint employment under the National Labor Relations Act, it remains to be seen whether today's NLRB will adopt such a position.
As Ogletree Deakins attorneys pointed out in a blog post for the firm, the court left several questions unanswered — most notably whether the ruling means that NLRB now lacks the authority to finalize its proposed rule.
Randolph noted as much in a footnote: "If the challenge to the final Board rule here were brought in a district court in another circuit, that district court would have no obligation to follow the majority opinion in this case. For this reason the Board, in its rulemaking, may decide to treat the majority's opinion as having no binding effect on the Board."
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