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The swirling ethics questions have left uncertain how the board, and NLRB lawyers tasked with enforcing federal labor law, currently determine whether businesses are joint employers. Companies that use franchise, staffing, and contract arrangements have said wider liability makes them responsible for workers they don’t control. Unions and worker advocates say a broader approach cuts through complicated arrangements to give employees a voice with those actually deciding the terms and conditions of their jobs. The board’s Democrat majority in 2015 used Browning-Ferris to expand joint employer liability to include situations in which a business exerts indirect control over workers. A Republican-majority board in December used Hy-Brand to overturn that decision and return to a more limited “direct-control” standard for joint employer liability. Berry later said Emanuel should have sat out Hy-Brand because his former law firm—Littler Mendelson—represented a subcontractor involved in Browning-Ferris. Emanuel shouldn’t have joined the board in urging the agency’s general counsel to ask an appeals court to drop its consideration of the Browning-Ferris case, the inspector general also said . Pearce, NLRB Chairman Marvin Kaplan (R), and Member Lauren McFerran (D) decided to scrap the Hy-Brand decision shortly after Berry’s first report became public. Lawyers for Hy-Brand said the board violated federal law by keeping Emanuel out of the loop on the move. They also accused Pearce of spilling the beans about the decision before it was made public. Pearce’s alleged comments are too vague to pose a serious problem for him, said University of Wyoming law professor Michael Duff, a former NLRB attorney.
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