This week, the Retail Litigation Center (RLC) joined an amicus brief filed by the U.S. Chamber of Commerce in the DC Circuit Court of Appeals, regarding the case of Browning-Ferris Industries of California v. National Labor Relations Board (NLRB). The brief asks the court to recognize that the NLRB’s decision does not comport with the common law definition of "joint employer" and therefore is beyond the scope of the agency's authority under the National Labor Relations Act.
Contrary to the long-standing rule that joint employers must exercise actual, direct, and substantial control over another employer’s workers in order to be considered a joint employer, the new rule requires only a theoretical, indirect, and limited right of control over employees before joint employer liability would attach.
“The NLRB decision to expand its prior definition of a joint employer not only completely disregards the lack of judicial consensus to do so, but also exposes retailers to improper potential labor-related liability,” said Deborah White, president of the RLC. “The RLC joins this brief as part of our ongoing efforts to preserve consistent, predictable, and fair employer standards.”
According to the brief:
“Whether the Board’s view is good labor relations policy can reasonably be debated. Whether the Board’s view accurately reflects the common law, however, cannot. There is no judicial authority at all—much less a judicial consensus sufficient to establish a common-law rule—that joint-employer status can be recognized on mere potential, indirect, or limited control. To recognize a joint employment relationship under those circumstances would contravene Congress’s intent that in defining an employee under the NLRA, the Board must follow the common law.”
The brief, drafted by the U.S. Chamber Litigation Center, Inc.’s Kate Comerford Todd, Steven P. Lehotsky, and Warren Postman, and Jenner & Block LLP’s Adam G. Unikowsky and Samuel C. Birnbaum, can be read here.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings that affect the retail industry. The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.