NLRB Joint Employer Standard Remains Up in the Air

There has been a flurry of activity following a February decision by the National Labor Relations Board (NLRB), unanimously vacating a decision that returned to a traditional standard for joint employer liability. The decision was reached following a report by the NLRB Inspector General that questioned Board member Bill Emanuel’s involvement in the case.

On February 26, in a 3-0 decision, the NLRB unanimously vacated a decision made in December 2017 regarding Hy-Brand Industrial Contractors that had returned to a traditional standard for joint employer liability. In that 3-0 decision concerning Hy-Brand, the Board stated that to be classified a "joint employer," jointly liable for labor violations, a business must have a direct and immediate connection to the employees in question. 

Bill Emanuel voted with the majority in the Hy-Brand case and requested the D.C. Circuit Court of Appeals remand the 2015 NLRB case concerning Browning-Ferris Industries that changed the traditional joint employer standard. However, Emanuel’s law firm represented Browning-Ferris in the 2015 case that expanded the definition of joint employer liability to indirect control. That led to the reversal of the decision in February 2018. Hy-Brand has asked that the NLRB reconsider its decision, arguing that Peter Emanuel did not represent any of the parties in the Browning-Ferris case.

On April 5, 2018, NLRB General Counsel Peter Robb filed a response to the NLRB’s action to vacating the decision in the Hy-Brand case. In the filing, Robb disapproves of the Board’s decision to exclude Emanuel from deliberations in vacating Hy-Brand, claiming the Board ignored precedent and may even have broken the law in doing so. Moreover, Robb stated that the Board’s conduct was “not consistent with its obligations under the [National Labor Relations] Act or the Administrative Procedures Act” and denied the parties in the case their due process rights. Robb has asked the Board to reconsider its withdrawal of the Hy-Brand decision.

In addition, the D.C. Circuit Court of Appeals has granted a motion by the NLRB to revive its review of the Browning-Ferris decision due to the “extraordinary circumstances” of the joint employer issue and the cases surrounding it. The court was presumably far along in issuing a decision, when in December 2017, the Board issued its decision in Hy-Brand, which vacated Browning-Ferris. In light of this change, the NLRB asked the D.C. Circuit to send BFI back to the Board, and the D.C. Circuit granted that request. The latest flurry of activity is only the latest uncertainty regarding the joint employer standard.

Senate Confirms Nominees to Key Labor Positions

The U.S. Senate has confirmed two nominees to key labor policy positions: John Ring to fill the final open seat on the NLRB and Patrick Pizzella to be the Deputy Secretary of Labor.

Confirmation of John Ring takes on added significance as the Trump Administration announced last week that he would serve as NLRB Chairman, rather than as a rank-and-file Board Member. Former Chairman Marvin Kaplan will remain one of the NLRB’s five members. Among the contentious issues facing the NLRB is what constitutes a “joint employer” relationship. 

Patrick Pizzella comes to the Department of Labor (DOL) at a time when it is short-staffed, needs to streamline regulations and address workforce development. As DOL’s second-in-command, he will play a critical role in setting policy, shaping strategy, and delivering results.

Congress Approves Final Fiscal Year 2018 Spending

After months of negotiation, Congress has approved a final spending bill for Fiscal Year (FY) 2018, which began on October 1. The federal government had been operating on a series of short-term spending agreements as Congress worked toward an agreement funding government operations for the balance of FY 2018. The most recent spending agreement was set to expire on March 23.

Congressional Republicans and the Trump Administration wanted more funding for a border wall along the U.S.-Mexico border than is included in the spending package. However, the legislation only includes $1.6 billion to fund 74 miles of solid barriers along the border. Democrats are disappointed that a compromise regarding the Deferred Action for Childhood Arrivals (DACA) program, which prevents individuals who came to the U.S. illegally as children from being deported, was not included in the spending bill.

DOL Issues New Wage and Hour Opinion Letters

The DOL’s Wage and Hour Division (WHD) has issued three new opinion letters. An opinion letter is an official document authored by the WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion letters represent official statements of DOL policy.

The three opinion letters released address compliance under the Fair Labor Standards Act (FLSA) and other laws:

• What counts as work time under the FLSA when employees travel for work;
• Whether 15-minute rest breaks required every hour by an employee’s serious health condition must be paid or may be uncompensated; and,
• Whether certain lump-sum payments from employers to employees are considered “earnings” for garnishment purposes under Title III of the Consumer Credit Protection Act.

In June 2017, Labor Secretary Alexander Acosta announced that DOL was resuming its longstanding practice of issuing opinion letters. The Department had issued opinion letters for more than 70 years before ceasing the practice in 2010.

ICE Carries Out Largest Workplace Raid in 10 Years

Officials with the U.S. Immigration and Customs Enforcement (ICE) have announced they have carried out the largest workplace raid in 10 years at a meatpacking plant in Tennessee. As part of the raid on April 5, 10 people were arrested on federal immigration charges, one person was arrested on state charges, and 86 immigrants were detained for being in the country illegally.

The announcement follows actions taken by ICE in recent months to aggressively target illegal immigration. In late-February, more than 150 people were detained by ICE in Northern California in a series of raids. And in January, ICE made 21 arrests at 7-Eleven convenience stores after targeting nearly 100 stores in 17 states and the District of Columbia.