Jeffrey Burke

In the September 2026 Employment Law Update, we examine the EEOC’s growing focus on “anti-American” national origin discrimination and what Chair Andrea Lucas’ recent enforcement initiatives may mean for employers. Pennsylvania employers with significant migrant worker populations, including those in the agricultural and mushroom industries, as well as businesses utilizing foreign-worker programs and outsourced international workforces, should take note of this emerging enforcement priority. Get the details below.

EEOC Signals in Social Media Campaign Heightened Enforcement of “Anti-American” National Origin Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Andrea Lucas, has made clear that enforcement of so-called “anti-American” national origin discrimination is a significant agency priority. Recent public statements suggest employers should expect increased scrutiny of hiring, promotion, and workforce management practices that are perceived as favoring foreign workers over U.S. workers.

Title VII of the Civil Rights Act prohibits discrimination based on national origin. While such claims have historically been associated with immigrant or foreign-born workers, the EEOC’s current leadership has emphasized that American workers are equally protected under the statute.

That shift was prominently displayed on September 14, 2026, when Chair Lucas released a video on X (formerly Twitter) and LinkedIn urging workers to report suspected anti-American discrimination. In the video, Lucas asked: “Have you been harassed at work for speaking English or for being too American?” She also questioned whether employers have “preferred workers of one foreign national origin” or whether a foreign-owned business “mostly hires or promotes non-American workers.”

Lucas further targeted employment-based immigration practices, asking technology workers whether they had encountered PERM labor certification advertisements requiring applicants to respond “by mail or even fax instead of the company’s normal online job platform.” She also referenced allegations that some employers “prefer foreign workers because they consider American workers lazy.” After listing these examples, Lucas concluded: “If any of this sounds familiar, you may have experienced unlawful anti-American national origin discrimination.”

The significance of the video is not the legal theory itself; Title VII has long prohibited discrimination against American workers based on national origin. Rather, the significance lies in the EEOC’s active effort to generate complaints and identify the fact patterns it intends to investigate. Employers should expect heightened scrutiny of hiring practices, guest-worker programs, foreign-language workplace policies, immigration sponsorship programs, and employment decisions involving foreign-owned businesses.

This development is particularly relevant for Pennsylvania employers operating in industries with substantial migrant, seasonal, or foreign-sponsored workforces. Agricultural employers, mushroom growers, food-processing operations, landscaping companies, hospitality businesses, and manufacturers that rely on guest-worker programs should carefully review their hiring, employment practices, and workforce composition to ensure that U.S. workers are afforded equal opportunities and are not being treated less favorably based on national origin. Likewise, employers utilizing H-2A, H-2B, H-1B, or other foreign-worker programs, outsourced international workforces or foreign-owned affiliated entities should ensure that recruiting, promotion, and staffing decisions are based on legitimate business considerations rather than preferences tied to a worker’s nationality.

The practical takeaway is not that employers should avoid utilizing lawful foreign labor programs or diverse workforces. Rather, employers should ensure that employment decisions are based on legitimate business criteria, that domestic applicants receive equal consideration, and that policies regarding language use, recruiting, and promotion are applied consistently. Given the EEOC’s public campaign to encourage complaints, employers should anticipate an increase in charges asserting anti-American national origin discrimination and review their practices accordingly.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.  

U.S. Equal Employment Opportunity Commission (“EEOC”) Chair Andrea Lucas said Wednesday that the agency’s new four-year strategic plan has secured final approval. This announcement is one of a series of shifts in EEOC focus under Lucas. So what do employers need to know about the current state of the EEOC, and where it is headed? Read more about it in the August employment law update:

The EEOC Under Andrea Lucas: What Employers Need to Know

Since President Trump designated Lucas as Chair of the EEOC, the agency has undertaken a significant shift in its enforcement priorities. While the EEOC’s mission remains the enforcement of federal anti-discrimination laws, Chair Lucas has emphasized what she describes as “evenhanded” enforcement, focusing on protecting all employees from unlawful discrimination regardless of race, sex, religion, or national origin.

The most significant development came in June 2026, when the EEOC adopted a new National Enforcement Plan for Fiscal Years 2025-2029, replacing the prior Strategic Enforcement Plan. The four-year plan provides a roadmap for the agency’s enforcement, litigation, outreach, and compliance efforts and offers employers valuable insight into where the EEOC intends to direct its resources.

A central theme of the Lucas EEOC is increased scrutiny of workplace policies or programs that make distinctions based on protected characteristics. The agency has signaled that it intends to examine diversity, equity, and inclusion (“DEI”) initiatives that may involve race- or sex-based preferences in hiring, promotions, internships, mentoring, leadership development, or other employment opportunities. According to the EEOC, Title VII prohibits discrimination against any individual, even when undertaken in pursuit of broader diversity objectives.

The agency has also elevated religious discrimination and accommodation claims as a key enforcement priority. Under Lucas’s leadership, the EEOC has pursued significant recoveries and litigation involving religious accommodations, including claims arising from workplace vaccination policies and other faith-based workplace conflicts. Employers should expect continued focus on accommodation requests, religious expression in the workplace, and allegations of religious harassment.

The Lucas EEOC has also proposed a significant change to federal workforce demographic reporting. In July 2026, the agency issued a proposed rule that would eliminate the long-standing EEO-1 reporting requirement and related demographic reporting obligations. While the proposal has not yet been finalized and covered employers must continue complying with existing reporting requirements, the initiative reflects the agency’s broader view that mandatory race- and sex-based workforce reporting is inconsistent with its current enforcement philosophy.

In addition, the new National Enforcement Plan highlights enforcement against overt discrimination in recruiting and hiring, job advertisements that discourage applicants based on protected characteristics, and practices that allegedly disadvantage employees based on race, sex, religion, or national origin. The plan also emphasizes prevention, education, voluntary compliance, and strategic litigation as complementary enforcement tools.

For employers, the changing enforcement landscape presents an opportunity to reassess workplace policies and practices. Companies should consider reviewing hiring and promotion procedures, DEI initiatives, accommodation processes, employee training programs, and anti-discrimination policies to ensure they are grounded in objective, job-related criteria.

Although EEOC priorities often change with administrations, the Lucas EEOC has made clear that it will pursue a different enforcement strategy than its recent predecessors. Employers who understand these priorities and proactively evaluate their practices will be better positioned to minimize risk and respond effectively to future agency scrutiny.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.  

Artificial Intelligence in the Workplace: Three Areas Employers Should Be Watching

Artificial intelligence is no longer a futuristic concept confined to Silicon Valley. Today, employers of all sizes are deploying AI-powered tools to recruit talent, evaluate employee performance, manage productivity, and streamline human resources functions. These technologies offer significant efficiencies, but they also introduce new legal risks that employers cannot afford to ignore.

While AI has the potential to improve workplace decision-making, it does not alter an employer’s legal obligations under federal, state, and local employment laws. In fact, regulators and courts are increasingly emphasizing that employers remain accountable for decisions made with the assistance of AI. As adoption accelerates, three areas are likely to dominate employment law over the next several years.

1. AI in Hiring: Increased Scrutiny of Employment Decisions

Hiring is perhaps the area where AI has gained the greatest traction. Employers increasingly rely on software to screen resumes, rank applicants, analyze interview responses, and predict candidate success. Properly implemented, these tools can improve consistency and reduce administrative burdens. However, they also present significant legal challenges.

An AI system is only as reliable as the data on which it is trained. If historical hiring decisions reflect unconscious bias or fail to account for protected characteristics, an AI model may inadvertently replicate those patterns. Even absent discriminatory intent, employers may face disparate impact claims if an AI-assisted hiring process disproportionately excludes applicants based on race, sex, age, disability, or another protected characteristic.

Employers should remember that delegating hiring decisions to a software vendor does not transfer legal responsibility. If an employer relies on an AI recommendation in making an employment decision, that employer will likely remain responsible for ensuring the decision complies with applicable anti-discrimination laws.

To reduce risk, employers should conduct due diligence before implementing AI hiring tools. That includes understanding how a system evaluates candidates, requesting documentation regarding bias testing and validation, periodically auditing outcomes for disparate impacts, and maintaining meaningful human oversight throughout the hiring process. AI should inform employment decisions – not replace independent judgment.

2. AI-Powered Employee Monitoring and Performance Management

Artificial intelligence is also transforming how employers evaluate employee performance. Modern workplace technologies can analyze productivity metrics, review electronic communications, summarize meetings, monitor computer usage, and identify performance trends

in real time. These capabilities can provide valuable management insights, but they also create new legal considerations.

Employers have long monitored workplace activity, but AI enables monitoring at a scale and level of sophistication previously unavailable. The more expansive the monitoring, the greater the likelihood of challenges involving employee privacy, retaliation, disability accommodations, and protected workplace activity.

For example, an AI system that automatically flags employees for low productivity may fail to account for approved medical accommodations, protected leave, or other legitimate explanations for reduced output. Similarly, automated disciplinary recommendations may overlook important context that a human supervisor would recognize immediately.

From a litigation perspective, employers should be particularly cautious about allowing AI-generated performance scores or disciplinary recommendations to become the sole basis for adverse employment actions. Plaintiffs will undoubtedly argue that employers abdicated their responsibility by blindly following algorithmic recommendations without conducting an individualized assessment.

Best practices include maintaining transparency regarding monitoring practices where appropriate, establishing clear internal policies governing AI use, documenting management’s independent review of AI-generated information, and ensuring supervisors understand that AI is a decision-support tool – not the final decision-maker.

3. Wage and Hour Compliance in an AI-Driven Workplace

Artificial intelligence is also changing how employers manage scheduling, timekeeping, and workforce allocation. AI systems can optimize employee schedules, forecast staffing needs, monitor productivity, approve overtime, and identify attendance patterns with remarkable efficiency. These same systems, however, can generate significant wage and hour exposure if not carefully managed.

For example, productivity-monitoring software may reveal that employees routinely perform work before clocking in, continue responding to emails after scheduled hours, or work through unpaid meal periods. While AI can help identify these issues, it also creates detailed electronic records that may later become evidence in wage and hour litigation if employers fail to address them.

Likewise, automated scheduling systems should be monitored to ensure they comply with applicable federal, state, and local laws regarding overtime, meal and rest periods, predictive scheduling requirements, and employee classification.

Employers should view AI as a compliance tool rather than merely an operational tool. Regular audits of AI-generated workforce data may help identify wage and hour risks before they develop into costly class or collective actions. HR, payroll, legal, and operations personnel should work collaboratively to ensure that AI-generated recommendations remain consistent with applicable employment laws and company policies.

Looking Ahead

Artificial intelligence will undoubtedly become a permanent feature of the modern workplace. Employers that embrace these technologies thoughtfully stand to benefit from increased efficiency, improved consistency, and more informed decision-making. Those benefits, however, come with corresponding legal responsibilities.

The most successful organizations will not be those that simply adopt AI the fastest, but those that implement it responsibly. That means conducting careful vendor due diligence, regularly auditing AI systems for legal compliance, maintaining robust human oversight, and documenting employment decisions independent of algorithmic recommendations.

Employment law has always adapted to new workplace technologies. Artificial intelligence represents the next evolution. Employers that proactively establish sound governance today will be better positioned to minimize litigation risk while realizing the substantial benefits AI has to offer.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.  

The June 2026 employment law update provides guidance on best practices for managing remote employees. Remote work has become a permanent part of the modern workplace, offering employers greater flexibility and access to talented professionals regardless of geographic location. However, managing remote employees presents unique legal and operational challenges that require thoughtful planning. Employers should develop comprehensive policies and practices that promote accountability while reducing the risk of employment-related claims. 

Establish Clear Remote Work Expectations 

The foundation of remote work management is a well-written remote work policy. This policy can define work schedules, availability expectations, communication protocols, performance standards, and procedures for requesting leave or reporting workplace issues. Employees should understand when they are expected to be available, how they should document their work time, and which communication platforms they are expected to use. Establishing these expectations upfront minimizes misunderstandings, promotes consistency across the organization, and provides managers with objective standards for evaluating performance. 

Stay Compliant with Wage and Hour Laws 

Employers must remain vigilant about compliance with wage and hour laws. The fact that an employee works from home does not change an employer’s obligations under federal and state labor laws. Nonexempt employees should accurately record all hours worked, including time spent responding to emails or completing tasks outside of their scheduled shifts. Managers should be trained to avoid encouraging off-the-clock work and should promptly address unauthorized overtime while ensuring employees are compensated for all hours actually worked. Regular audits of timekeeping practices and manager training can help minimize costly wage and hour disputes. 

Respond Thoughtfully to Accommodation Requests 

Another issue that has become increasingly common is employee requests for remote work as a reasonable accommodation for a medical condition or disability. Employers should avoid treating these requests as automatic approvals or automatic denials. Instead, they should engage in the interactive process required by applicable disability discrimination laws to determine whether remote work – or another accommodation – would enable the employee to perform the essential functions of the position without creating an undue hardship. 

This analysis should be individualized and based on the employee’s specific limitations, the essential duties of the position, and the employer’s operational needs. Employers should also recognize that if a position has been successfully performed remotely for an extended period, it may be more difficult to argue that regular on-site attendance is an essential job function. Carefully documenting the interactive process and the rationale for accommodation decisions can significantly reduce legal risk if those decisions are later challenged. 

Protect Confidential Information and Company Data 

Protecting confidential business information is another significant concern in remote work environments. Employers should implement cybersecurity measures such as multi-factor authentication, secure virtual private networks, encrypted devices, and strong password requirements. Regular cybersecurity training can help employees recognize phishing attempts, avoid unsafe internet practices, and properly safeguard sensitive client and company information. Written policies should also address the appropriate use of personal devices, home printing, document retention, and the secure disposal of confidential materials. 

Evaluate Performance Based on Results 

Performance management often requires a different approach when employees are working remotely. Rather than evaluating employees based on their online presence or immediate responsiveness, employers should establish objective performance metrics tied to job responsibilities and measurable outcomes. Regular check-ins, documented feedback, and consistent performance evaluations help employees stay engaged while reducing the likelihood of claims involving inconsistent treatment or discrimination. 

Understand Multi-State Employment Obligations 

One of the most overlooked challenges of managing a remote workforce is compliance with the employment laws of multiple jurisdictions. In many cases, the laws of the state or locality where the employee lives and performs the work – not where the employer’s headquarters is located – will govern key aspects of the employment relationship. As a result, employers with remote employees in different states may be subject to a patchwork of wage and hour laws, paid leave requirements, meal and rest break rules, final paycheck obligations, expense reimbursement statutes, and other state-specific employment regulations. 

Employers should periodically review their policies, payroll practices, and remote work arrangements to ensure compliance with the laws applicable in each jurisdiction where employees work. Conducting regular legal audits can help identify compliance gaps before they result in costly litigation or government investigations. 

The Bottom Line 

Remote work offers significant benefits for both employers and employees, but it also requires careful attention to evolving legal obligations. By implementing clear policies, maintaining compliant wage and hour practices, thoughtfully addressing accommodation requests, safeguarding confidential information, managing performance consistently, and understanding multi-state employment laws, employers can reduce legal risk while fostering a productive, engaged, and successful remote workforce. 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.  

The May 2026 employment law update provides guidance on best practices for Employer workplace investigations based upon recent trends in employment litigation:

Internal workplace investigations have long served as a critical risk-management tool for employers facing allegations of discrimination, harassment, retaliation and employee misconduct. When conducted effectively, they allow organizations to identify issues early, respond appropriately to complaints and build a defensible record supporting employment decisions. Increasingly, however, the investigation itself has become a focal point in employment litigation.

Employees and their counsel frequently scrutinize whether an investigation was truly impartial or merely a process designed to justify a predetermined outcome. Courts examining these claims have made clear that not every flaw or omission in an investigation will establish liability. Still, where the investigative process appears superficial, biased, incomplete or closely tied to disciplinary decision-makers, those deficiencies can undermine an employer’s credibility and support claims of pretext or retaliation.

Recent employment disputes illustrate how these challenges arise in practice. In some cases, employees allege that investigators lacked independence because human resources personnel or in-house counsel were simultaneously involved in both fact-finding and disciplinary decisions. In others, plaintiffs point to limited witness interviews, selective evidence review, poor documentation or failures to adequately address employee complaints as evidence that the process was outcome-driven rather than a genuine effort to determine the facts.

These concerns often center on three interrelated concepts: independence, credibility, and trust. Independence is essential because investigations lose persuasive value when employees perceive investigators as aligned with management or invested in a particular result. Courts may view overlapping investigative and disciplinary roles as evidence that the process lacked neutrality, particularly when employment decisions appear to have been made before the investigation concluded.

Credibility is equally important. An investigation may satisfy procedural requirements on paper yet still appear unreliable when examined during litigation. Plaintiffs’ attorneys routinely challenge what investigators failed to do – including witnesses they did not interview, records they did not review, and allegations they did not fully explore. Employers must therefore be prepared not only to show that an investigation occurred, but also to explain why its scope, timing and methodology were reasonable under the circumstances.

Trust also plays a significant role in the effectiveness of workplace investigations. Employees are far more likely to participate candidly when they believe the process is fair, confidential, and free from retaliation. Conversely, employees who perceive investigations as management-driven or predetermined may withhold information, avoid participation or later challenge the integrity of the process itself. Building trust requires clear communication, meaningful anti-retaliation protections, and investigators capable of navigating sensitive workplace dynamics with professionalism and impartiality.

For employers, the broader lesson is clear: workplace investigations should not be treated as mere compliance exercises. They are often central pieces of evidence that may later be dissected by opposing counsel, judges, and juries. Timing, documentation, internal communications and decision-making processes can all become subject to scrutiny in discovery.

Organizations can reduce risk by separating investigative and disciplinary functions where possible, carefully managing communications during the process, and ensuring investigators possess not only technical knowledge, but also sound judgment and strong interpersonal skills. In matters involving senior leadership, significant employee complaints or heightened legal exposure, employers may also benefit from engaging independent outside investigators to reinforce the integrity of the process.

Ultimately, the effectiveness of an internal investigation depends not simply on whether it was completed or any particular outcome, but on whether it will withstand scrutiny after litigation begins. Employers that prioritize independence, credibility and employee trust place themselves in a far stronger position to defend both their decisions and the investigative process that supported them.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.  

February 2026 brings significant developments across the employment law landscape, from heightened federal scrutiny of DEI programs and tightened limits on restrictive covenants to another consequential turn in the evolving joint-employer standard. Read the details below. 

EEOC’s Subpoena of Nike Signals Sweeping Shift in Federal Scrutiny of Corporate DEI Programs

On Feb. 4, the U.S. Equal Employment Opportunity Commission (EEOC) asked the U.S. District Court for the Eastern District of Missouri to enforce an administrative subpoena against Nike Inc., marking a dramatic shift in federal scrutiny of corporate diversity, equity and inclusion (DEI) programs. The subpoena stems from a May 2024 charge filed by then-Commissioner Andrea Lucas alleging that Nike engaged in a pattern or practice of intentional discrimination against white employees and applicants, or alternatively caused unlawful disparate impact. 

Although Nike previously entered into a settlement agreement with the EEOC in January 2025, the agency later rescinded the agreement without explanation, reassigned the investigation and expanded its information requests. The subpoena seeks extensive documentation dating back as early as 2018, including data on executive compensation tied to minority workforce metrics, use of “diverse slates” in hiring, demographic tracking, layoffs, promotions and 16 DEI-related programs. The agency is demanding granular, employee-level data in sortable databases, signaling an expansive and detailed review of personnel decisions. 

The investigation reflects a broader enforcement pivot following the January 2025 change in administration. Practices once encouraged as voluntary affirmative action or diversity efforts are now being reframed as potential evidence of systemic discrimination. For federal contractors, the risk is heightened by potential False Claims Act exposure and collaboration between enforcement agencies. 

In this evolving environment, employers are urged to strengthen compliance programs. Recommended steps include objective job qualifications, careful applicant tracking, privileged statistical audits, compensation analyses and thorough investigation of all discrimination complaints. Proactive compliance and documentation are now essential to mitigate legal risk while maintaining equitable workplace practices. 

Pennsylvania Superior Court Affirms Denial of Injunction Against Former FNB Advisers Joining Competitor 

The Pennsylvania Superior Court has affirmed a lower court’s decision denying an injunction sought by First National Trust Co., doing business as FNB Wealth Management, against three former financial advisers who left to join a competitor. The ruling allows Stephen G. English, Benton Elliott Jr. and Zachary A. Craig to continue working for Capital Wealth Advisers, finding they did not violate their restrictive covenants. 

In a decision authored by Judge Mary Murray, a three-judge panel upheld the Allegheny County court’s determination that the nonsolicitation provisions in the advisers’ contracts were unenforceable as written. The court also rejected allegations that the advisers conspired with Capital Wealth to misappropriate trade secrets or solicit clients improperly. 

According to the opinion, the advisers did not provide customer lists or account information to their new employer. Instead, they shared only generalized, rounded estimates of their compensation for financial modeling purposes. The trial court concluded that such information was not proprietary. 

The advisers resigned from First National on Jan. 31, 2025, and began working at Capital Wealth the following Monday. Testimony indicated they did not directly solicit former clients; some clients reportedly learned of their departure from First National and independently chose to follow them. 

The decision clarifies limits on broad restrictive covenants and underscores the evidentiary burden employers face when seeking injunctive relief. 

The case is First National Trust Co. d/b/a FNB Wealth Management v. Stephen G. English et al., case number 1109 WDA 2025 in the Pennsylvania Superior Court. 

NLRB Rules Browning-Ferris Must Bargain as Joint Employer in Landmark Labor Dispute 

In a pivotal decision in the long-running Browning-Ferris dispute, the National Labor Relations Board ruled Monday that Browning-Ferris Industries of California must bargain with workers supplied by staffing firm Leadpoint Business Services. The unanimous three-member panel concluded that Browning-Ferris is a joint employer of Leadpoint employees at the Newby Island Recyclery in California because it exercises both direct and indirect control over their working conditions. 

The ruling marks the fourth time in more than a decade that the board has addressed the joint-employer question in this case, which has become central to national debates over shared liability under the National Labor Relations Act. Acting in response to a 2022 D.C. Circuit remand, the board applied its 2015 joint-employer standard — which permits a finding of joint employment based on indirect control — rather than the narrower 2020 rule requiring direct control. 

The board cited Browning-Ferris’ authority to set production pace, cap wages Leadpoint may pay, instruct supervisors and require the removal of certain employees as evidence of sufficient control. While emphasizing that its analysis applies only to this case under the 2015 standard, the decision advances a “test of certification” strategy that could return the dispute to federal court. Nearly 13 years after voting to unionize, the workers move closer to collective bargaining with the facility operator. 

The case is Browning-Ferris Industries of California, Inc., et al. and Sanitary Truck Drivers and Helpers Local 350, case number 32-CA-160759, before the National Labor Relations Board. 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.