NLRB Joint Employment Decision in Accord With Decades of Legal Precedent


The U.S. National Labor Relations Board’s Dec. 14 decision in Hy-Brand Industrial Contractors Ltd. was a welcome return to a joint employer legal standard backed by more than 30 years of legal precedent, according to Stephen Dwyer, American Staffing Association general counsel. The board’s decision to expand the legal standard in Browning-Ferris did not demonstrably result in increased unionization of temporary workers, Dwyer noted, but it nevertheless created uncertainty under the law.

Browning-Ferris did not significantly impact the staffing industry, as most temporary workers already were jointly employed by staffing firms and clients under prior law. However, the board’s decision represented a radical departure from prior decisions,” Dwyer said.

“While the American Staffing Association supported the rights of workers under the National Labor Relations Act in an amicus brief filed in Browning-Ferris, ASA argued that only Congress, not the board, has the legal authority to change the statutory standard,” Dwyer emphasized. “In Hy-Brand Industrial Contractors Ltd, the board agreed, stating that such a change ‘is solely within the province of Congress, not the board.”

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About the American Staffing Association

The American Staffing Association is the voice of the U.S. staffing, recruiting, and workforce solutions industry. ASA and its state affiliates advance the interests of the industry across all sectors through advocacy, research, education, and the promotion of high standards of legal, ethical, and professional practices. For more information about ASA, visit

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