Dive Brief:
- National Labor Relations Board member William Emanuel is under investigation by the Board's inspector general for a potential ethics violation, ProPublica reports.
- Emanuel, appointed by President Donald Trump, joined his colleagues in successfully requesting that a federal appeals court refrain from reviewing the Board's Obama-era joint-employment standard and instead, send the case back to the Board. The case, known as Browning-Ferris, involved his former law firm, Littler Mendelson, and the investigation aims to determine whether his participation was improper because of a conflict of interest, according to ProPublica.
- In a Jan. 26 letter to lawmakers, Emanuel denied he knew that any Littler attorneys were involved with Browning-Ferris. But after ProPublica pointed out on Feb. 1 that he acknowledged the involvement during his Senate confirmation process, he sent lawmakers a new letter saying that his initial letter required clarification and that he would send "a further response, clarification, or correction soon."
Dive Insight:
During the Obama administration, NLRB adopted a new standard for determining when two employers (a franchisor and a franchisee, for example) may held jointly liable for National Labor Relations Act violations. That standard asserted that indirect control of an employee could constitute a joint-employer relationship.
An appeal challenging that test was pending at the D.C. Circuit Court of Appeals when the NLRB gained a short-lived conservative majority. It acted quickly, considering cases in which it could overhaul Obama-era standards, including one that allowed it to roll back that joint-employment test. The Board members then asked the D.C. Circuit to return Browning-Ferris (the action at the center of the investigator's inquiry), which it agreed to do "in light of new Board precedent."
It's not yet clear what effect the inspector general's investigation might have on the ruling, but until Trump's final nominee is confirmed, the Board remains split 2-2.
