The National Labor Relations Board (NLRB) is an independent federal agency that is charged with deciding cases brought under the National Labor Relations Act ("NLRA") of 1935. The NLRA was passed by Congress to protect the rights of employees and employers. Many of the law's provisions apply to private employers and not just to union employers.
Two recent decisions are worthy of note:
1. Joint Employer Standard
Until 2015, the standard used by the NLRB to determine if a company and its contractors or franchisees could be deemed a single joint employer was whether a business had "direct and immediate" control over the terms and conditions of employment. In 2015, the NLRB decided Browning-Ferris Industries of California (BFI), and expanded the standard to include the term "indirect control." BFI was considered to be a joint employer of workers who were employed by a staffing agency and supplied to BFI at one of its locations.
Recently, the NLRB returned to the pre-BFI standard in Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co. The NLRB stated the BFI test had introduced instability in bargaining relationships.
2. Employee Handbooks
The NLRB decided Boeing Co. and Society of Professional Engineering Employees in Aerospace IFPTE Local 2001, abandoning an older standard, first set out in its 2004 Lutheran Heritage Village-Livonia case. In Lutheran Heritage, the NLRB had held that a corporate rule would be considered illegal if employees could "reasonably construe" the rule to bar them from exercising their rights under the NLRA.
However, the recent ruling in the Boeing case set out a different standard that would be applied to handbook rules going forward. The NLRB will now examine a challenged rule to consider the "nature and extent" of that rule's "potential impact on NLRA rights" and the "legitimate justifications associated with the rule." In other words, the rule will be judged by its effect on worker's rights balanced by the employer's legitimate business interest.