NLRB Flip Flops on Browning Ferris Standard for Joint Employment (Again)

Q.  What is the standard for determining whether two companies are joint employers?

A.  On February 26, the National Labor Relations Board (NLRB) decided unanimously to vacate its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) (vacated at 366 NLRB No. 26).  As we reported previously, in December 2017, the NLRB issued a 3-2 decision in Hy-Brand, in which it overruled the controversial joint-employer standard articulated in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015). The Browning-Ferris decision had significantly relaxed the standard for proving that two entities are joint employers, ruling that entities could be joint employers even if one had only indirect control or the unexercised right to control employees’ terms and conditions of employment. The Hy-Brand decision returned to the pre-Browning-Ferris standard for finding joint-employer status, under which entities are joint employers only if each has exercised direct and immediate control over employees.

With this latest development, at least for now, the Browning-Ferris standard is in effect again, making it much easier for employees and unions to establish that two companies are joint employers.

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Susan K. Lessack

Employees’ Right to Representation During Employer Interviews

Q.  I am the HR Manager for a non-union workplace and we are investigating an issue involving employee misconduct. One of the employees whom I want to interview has requested that a coworker attend the interview as his “representative.” Can we say no?

A.  Yes!

While the NLRB has flip-flopped on this issue several times over the past few decades, the current ruling is that employees in non-union workplaces do not have so-called “Weingarten” rights to representation during company interviews.

The history of whether Weingarten rights to representation cover non-union employees is an interesting example of the effect of the shifting political landscape over time. Back in 1975, the United States Supreme Court held, in the case NLRB v. Weingarten, that an employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by denying a unionized employee’s request to have a union representative present at an investigatory interview which the employee reasonably believed might result in disciplinary action.  Six years later, the NLRB extended Weingarten rights to non-union employees.  However, in a pair of subsequent cases in the mid-1980’s, the NLRB reversed this decision and ruled that Weingarten rights did not extend to non-union employees.

Fast forward to the year 2000 and a new set of competing decisions. In the case, Epilepsy Foundation of Northeast Ohio, the NLRB reversed its prior decision and instead found that non-union employees did indeed have a right to have a co-worker present during an investigatory interview that could lead to discipline.  However, just four years later, in IBM Corp., the NLRB changed direction again, ruling that Weingarten rights did not extend to non-union employees.  In the IBM Corp. opinion, the NLRB noted that an employee’s right to a representative was outweighed by the employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.

Since the IBM Corp. case, the NLRB has rejected subsequent attempts to extend Weingarten rights to non-union workers.  In a NLRB Office of the General Counsel Advice Memorandum,  dated December 1, 2016 but not released until two months ago, the Office of the General Counsel urged Region 6 to use a pair of cases against General Electric Company to press the Board to extend Weingarten rights to unrepresented employees.  However, both cases were withdrawn.  Given the change in the make-up of the Board under the Trump Administration, it is unlikely that the Board will take up this issue anytime soon.

So, for the time being at least, employers of non-union workers can continue to conduct investigatory interviews without permitting employee representation. On the other hand, Weingarten rights of unionized workers remain intact.

— Tracey E. Diamond