Client Alerts & Insights
Browning-Ferris Valid for Joint Employer Analysis Once Again
February 27, 2018
Authored By:
Just over two months after the National Labor Relations Board (“NLRB”) reversed the Browning-Ferris decision that re-wrote the test the NLRB used for joint employment (see our December 15 alert here), the Board vacated its decision in Hy-Brand Industrial Contractors and reinstated Browning-Ferris.
In 2015, the NLRB established a joint employer test in Browning-Ferris that held that mere potential control over the working conditions of another employer’s employees was sufficient to find a joint employer relationship. In December 2017, the NLRB, with the recent addition of Board member William Emanuel, overturned Browning-Ferris in Hy-Brand. In Hy-Brand, the Board found that finding joint employer status required (1) that a putative joint employer exercised joint control, rather than merely having reserved the right to exercise control; (2) that the control is direct and immediate rather than indirect; and (3) that joint-employer status will not result from “limited and routine” control.
However, on February 9, NLRB Inspector General (“IG”) David Berry sent a report to Board members stating that Emanuel should not have participated in the Hy-Brand decision because his former law firm represented Leadpoint in the 2015 decision and the Hy-Brand case was essentially a direct continuation of Browning-Ferris. The IG stated that the deliberations in Hy-Brand involved the legal rights of the parties in Browning-Ferris meaning “for all intents and purposes … the vehicle to continue the deliberations of Browning-Ferris.”
On February 26, the Board unanimously vacated the Hy-Brand decision in light of the IG report, meaning that the Browning-Ferris joint-employer test is once again in place. The Board stated that its designated agency ethics official determined that Emanuel should have been disqualified from the proceeding, prompting the decision to vacate.
For more information on this topic, contact a member of Benesch’s Labor & Employment Practice Group.
Eric Baisden | ebaisden@beneschlaw.com | 216.363.4676
Peter Kirsanow | pkirsanow@beneschlaw.com | 216.363.4481
Steve Moss | smoss@beneschlaw.com | 216.363.4675
Adam Primm | aprimm@beneschlaw.com | 216.363.4451
Latest News
HHS OIG Sends a Strong Warning to State Medicaid Fraud Control Units: Signals Aggressive Federal Oversight of State Medicaid Fraud Enforcement
On May 13, 2026, the U.S. Department of Health and Human Services Office of Inspector General (“HHS OIG”) sent a letter to the Attorneys General of every state warning that the federal government will impose strict compliance requirements on the state’s Medicaid Fraud Control Unit (“MFCU”).
CMS Imposes Nationwide Moratorium on Home Health Agency and Hospice Enrollments
The Securities and Exchange Commission (“SEC”) remains active on both investigative and litigation fronts. Associate Director Lee emphasized that investor protection continues to be the agency’s central mandate, with enforcement efforts concentrated on misrepresentation and disclosure failures, market manipulation, insider trading and fraud using artificial intelligence.
Word on the Street: Insights from Federal Enforcement Leaders in the Northern District of California
The Securities and Exchange Commission (“SEC”) remains active on both investigative and litigation fronts. Associate Director Lee emphasized that investor protection continues to be the agency’s central mandate, with enforcement efforts concentrated on misrepresentation and disclosure failures, market manipulation, insider trading and fraud using artificial intelligence.
DOJ Strikes Again: Healthcare Fraud Enforcement Escalates as DOJ Deploys West Coast Strike Force
On April 30, 2026, the U.S. Department of Justice (“DOJ”) announced the creation of the West Coast Health Care Fraud Strike Force (the “Strike Force”), a new multidistrict enforcement initiative targeting healthcare fraud schemes across Arizona, Nevada, and Northern California.