There is further confusion over joint employer status, this time stemming from a three-judge panel of the D.C. Circuit Court of Appeals.

Voting 2-1, the judges either overturned – or they upheld – the original National Labor Relations Board decision rendered in 2015 that broadly expanded joint employer status.

The two appeals court judges also said the pending NLRB rulemaking is irrelevant to interpreting the law – or just in terms of having asked the court to hold off until the rulemaking was done.

As the lone dissenting judge put it, the two-judge majority’s decision is “confused and confusing.”

The case originated in 2015 when the Obama-era NLRB determined in its Browning-Ferris decision that a company was a joint employer even when it did not exercise control over another company’s staff, just as long as if there was a remote chance it could do so some time in the future.

The decision was seen as an attempt to aid unions’ ongoing attempts to organize franchise operations like McDonald’s. Several business associations brought suit against it in federal court.

While that suit proceeded, a new Republican-led NLRB under President Trump overturned Browning-Ferris in a case involving different companies. Shortly after rendering that decision, the board had to reverse itself and withdraw it when a conflict of interest accusation arose that, although spurious, threatened future legal challenges to the new board’s decision.

The board then opened a formal rulemaking proceeding which would avoid the conflict of interest charge. That proceeding is expected to wrap up early this year. In the meantime, the NLRB asked the court to postpone rendering a decision on the lawsuit until that was completed.

The three-judge decision is likely to be appealed to the full court if the business groups who brought suit cannot obtain a reconsideration from the panel.