On December 28th, the D.C. Circuit Court of Appeals issued its long-awaited Browning-Ferris Industries appeal decision – nearly two years after oral arguments were presented in the case. In a 2-1 split decision, the court found that BFI should not be considered a joint employer, but at the same time found that the analytical structure with which the NLRB made its determination of BFI as a joint employer was sound! In other words, the court ruled the standard applied to BFI was logical, but too broad in its application. Senior Judge Randolph in his dissent, wrote that the entire process by which the NLRB redefined joint employer was flawed and should be struck down, but Judges Millett and Wilkins in the majority left intact the “indirect” or “potential” control structure adopted in 2015 by the Obama NLRB. In the end, the court remanded the case to the NLRB to refine the standard and properly define what kind of “indirect control” would qualify BFI as a joint employer. So, although we do have an appellate court decision tossing the 2015 decision, both sides have until February 11 to ask the full DC Circuit to rehear the case. In the meantime, the new definition of joint employer remains in play and the regulatory waters surrounding it remain murky.
