Last week, the National Labor Relations Board announced that it will no longer use the Browning-Ferris joint-employer test. If you don’t have a union, why should you care? This is the test that many courts consider when determining just who employed (and is therefore responsible for) an employee who is suing for any number of reasons.

What Was the Browning-Ferris Test?

Alas, Browning-Ferris, We Barely Knew You: NLRB Rejects Its Own Recently Adopted Joint-Employer TestYou may recall that about a year ago, in Browning-Ferris Industries of California v. NLRB, et al., the NLRB implemented an unprecedented expansion of its joint-employer test. When two or more businesses share control over a worker’s terms of employment, the NLRB (and others) often need to determine who that employee’s actual employer is. The Browning-Ferris decision came up with an indirect control test in which a business with little, if any, control over an employee could qualify as the employer, resulting in many more joint-employer relationships. All that the indirect control standard required was that the entities in question be “employers” under common law precedent and share or codetermine matters regarding the employee’s terms and conditions of employment. The Browning-Ferris decision was met with much controversy, but the opposition can now rest easy, because the NLRB has restored its former joint-employer standard.

What is the Current Standard?

The original (and now current) standard focuses on the degree of direct and immediate control by employers. The test requires direct and immediate control over the essential terms and conditions of employment, such as hiring, firing, and disciplining employees. In a press release, the NLRB stated the following:

In all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. Accordingly, under the pre–Browning Ferris standard restored today, proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship.

Takeaways

This is good news for employers, as it is now harder for a worker to claim that more than one business is his or her employer. Not surprisingly, this decision is hotly contested by champions for unionization.

How can your company avoid joint-employer liability? Try some of these tips:

  1. Keep your human resources and payroll functions separate and independent.
  2. Maintain separate lines of supervision.
  3. Do not comingle equipment and resources unless all of the exchanges of such clearly are accounted for in some business fashion.
  4. Do not have one company and its C-suite governing the operation of a second company.
  5. Certainly maintain separate books and tax records.
  6. Keep brands separate.
  7. Take care of the obvious stuff, such as don’t use the same telephone number and switchboard.
  8. Use contracts, subcontracts, and consulting contracts to maintain arm’s length business obligations between the services of the companies.
  9. Maintain confidentiality of trade secrets and bidding information.
  10. Keep those union and nonunion workers as far from each other as possible.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!

Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a violation of her company’s social media policy. The company said that the image was “lewd” and “obscene.” The woman argued that she was not at work when the photo was taken and did not mention her employer in the post. No litigation or charges have been filed yet, but would they be successful?

Can an Employer Regulate Political Social Media Speech?

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

What comes to most people’s mind when reading this type of scenario is the First Amendment guarantee of free speech. However, the First Amendment protects against governmental censorship of speech. With some restrictions, a private employer can restrict speech in the workplace. This right to restrict also may be extended to social media speech, especially when the employer has a written social media policy and if the employee is using employer-provided equipment (cell phone or computer) to engage in the speech. Coupled with the fact that many states are “at-will” employment states, it may be perfectly acceptable for an employer to terminate an employee who engages in speech that the employer finds offensive or non-productive.

One complication outside of the First Amendment is the National Labor Relations Board’s recent decisions that employees cannot be restricted from commenting on social media about their conditions of employment. The NLRB considers such comments to be “concerted protected activity” for which an employer may not retaliate. However, as seen here, there may be social media posts that have nothing to do with the conditions of the workplace, but that the employer doesn’t like. For those posts, discipline or termination may be an option.

This story is a good prompt for employers to review their social media policies and to talk about them with their employees. Remind employees that, although they may not expressly identify each post with the place they work, they still may be considered the face of the organization. Political discussions are not per se taboo—but the tone and language used may sometimes stray into offensive territory. As always, an open dialogue about employment policies usually results in happier employees and less difficult situations.