Hunton Employment & Labor Perspectives

The National Labor Relations Board (Board) announced on June 21, 2022, that it intends to engage in rulemaking with respect to several subjects. One of those which was revealed to be a subject of rulemaking was joint-employer status under the National Labor Relations Act (Act).

In a brief filed on September 7, 2016 (“NLRB Brief”), the National Labor Relations Board (“NLRB” or “the Board”) urged the United States Court of Appeals for the District of Columbia Circuit to uphold its new “joint employer” standard, set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). Through this new standard, the Board now seeks to impose collective bargaining and other NLRA obligations on companies that may indirectly control certain conditions of employment, or that merely reserve (but do not exercise) such control.  Casting aside the more precise “direct and immediate control” standard it explicitly adopted in 1984, the Board in Browning-Ferris opted instead to analyze joint control issues on a fact-specific, case-by-case basis, with a greater focus on reserved and indirect control.  The case on appeal is entitled Browning-Ferris Industries of California, Inc., d/b/a/ Browning-Ferris Newby Island Recyclery v. National Labor Relations Board,  Nos. 16-1028, 16-1063 and 16-1064.

The Eleventh Circuit recently ruled that an employee had standing to seek an injunction against his employer and a labor union over alleged violations of the Labor Management Relations Act (“LMRA”) in the union organizing context.  In Mulhall v. UNITE HERE Local 355, Hollywood Greyhound Track, Inc., d.b.a. Mardi Gras Gaming, (No. 09-12683, September 10, 2010), the Eleventh Circuit reversed the lower court’s dismissal of the case, overruling its decision that the employee lacked a cognizable injury, and remanded the case for further proceedings.

The U.S. Department of Labor (DOL) recently announced that it will propose new regulations that potentially could expand employers’ and labor consultants’ reporting obligations under Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This may require employers to disclose some information that currently is not reportable, such as information related to advice from labor consultants and perhaps even attorneys.