This and That: Joint Employer Standards and Class Action Tolling
Last week, the NLRB announced that it would be issuing proposed rulemaking on joint employer standards this summer. Employers will recall that in 2015, the NLRB issued a controversial decision in Browning-Ferris Industries, adopting a broad standard for finding a joint employment relationship anytime an entity exercises “indirect” control over work conditions and/or has a right (e.g. by contract) to potentially exercise control. This decision was a departure from the traditional test that found joint employment only where an entity actually exercised some direct control, and greatly expanded the scope of bargaining responsibility and potential liability for labor law violations to a wide range of “indirect” employers. In 2017, however, in a case known as Hy-Brand, the NLRB overruled Browning-Ferris in favor of a return to the traditional direct control test for joint employment. That positive turn of events was short-lived though because in early 2018, the NLRB vacated the Hy-Brand decision based on an alleged conflict of interest that invalidated the decision. This resulted in the Browning-Ferris decision being reinstated, but left employers in the dark as to the precise test that the NLRB would use to determine joint employment going forward. That confusion may soon end, now that the NLRB has announced that it will be issuing proposed rulemaking this summer on this very issue. We will keep you posted as to these rulemaking developments.
In other news this week, the United States Supreme Court issued a helpful decision in China Agritech v. Resh on the issue of when a plaintiff gets (and, more importantly, does not get) the benefit of tolling of the statute of limitations in the case of successive class action lawsuits. The Court held:
“The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? Our answer is no. American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.”
In effect, an individual plaintiff can still get the benefit of tolling, but tolling cannot be used to allow successive class action lawsuits that would be time-barred absent application of tolling. The Supreme Court’s decision is here.