Under current National Labor Relations Board rules, a union can organize a bargaining unit of temporary employees, and the user employer’s solely employed regular employees, only if both employers consent. Unfortunately, it does not stop there. Businesses that once evaded liability may now be on the hook for subcontractors, franchisee employees, and temporary employment agency hires. With respect to Miller & Anderson, the key takeaway is recognizing that many of the factors that suggested a community of interest between the two businesses in that case also exist in many modern workplaces employing both traditional and temporary workers. 8101 et seq., establishes a comprehensive and exclusive workers' compensation program which pays compensation for the disability or death of a federal employee resulting from personal injury sustained while in the performance of duty. In August 2015, however, the NLRB changed the standards for determining whether two different companies could both be considered employers of the same group of employees for purposes of the NLRA in a case known as Browning-Ferris. The NLRB’s new decision will likely have the immediate impact of assisting unions to organize sites where employers use both permanent and temporary employees and may enable unions to obtain and win elections based on the support of an employer’s temporary workforce. This fragmentation could pit the two employers against each other and give the union greater bargaining power. The board announced the ruling last Thursday. Sturgis rule effectuated the fundamental policies of the Act by affording employees the “fullest freedom” “to choose the unit they wish to organize.”. Where unions are successful at organizing, this new rule will complicate the collective bargaining process by requiring multiple “employers” to bargain with the union and by likely requiring all such “employers” to pursue a single collective bargaining agreement. We recruit, hire, develop, retain, and promote the best attorneys and staff at all levels – regardless of race, color, ethnicity, gender, religion, age, LGBTQ identification, marital status, disability, background, or viewpoint. Sturgis, returning to the joint-consent standard established in Greenhoot. An employer concerned about organizing activity should consider that its temporary employees may now become a target and an avenue for union organizers to infiltrate the employer’s workforce. Workers … Citing its “statutory command” to ensure that “employees [have] the fullest freedom in exercising the rights guaranteed by th[e] Act,” the NLRB reasoned that the broad language of the term “employer unit” necessarily included both sets of employees who, according to the NLRB, are “working side by side, are part of a common enterprise.” Beyond the statutory language, the NLRB reasoned that the M.B. What Do These Decisions Mean For The Retail Sector? Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity. 75, the NLRB announced a new test for determining whether a worker should be considered a covered employee or an independent contractor outside the protections of the NLRA. Under the NLRB’s rationale, a “supplier” employer includes a temporary-worker agency or a contractor that provides labor to another entity. Greenhoot, Inc., 205 NLRB 250 (1973). Franchisors were themselves rarely sufficiently intertwined with the operations of their franchisees to be considered employers under the National Labor Relations Act (NLRA). The National Labor Relations Board’s (NLRB’s or the Board’s) decision in BFI Newby Island Recyclery, 362 NLRB No. The firings of Berland, Spiers and other employees … Sturgis decision was short-lived, however. By using this site, you agree to our updated General Privacy Policy and our Legal Notices. In that July 2016 case, the … Together, Browning-Ferris and Miller & Anderson represent an important shift in the definition and consequences of joint employment and in the utility of a variable workforce. A “user” employer is the entity that contracts with the “supplier” employer to obtain labor services for its business operations. The National Labor Relations Board is charging Nissan Motor Co. and a contract worker agency with violating workers’ rights at the company’s Mississippi plant. If you are not a McGuireWoods client, do not send us any confidential information. The NLRB originally changed its position in 2000 with the M.B. Since the 1970s, the NLRB had consistently found that a bargaining unit containing both an employer’s regular employees and the employer’s temporary employees supplied by a staffing agency was inappropriate without the consent of both the employer and the staffing agency. The National Labor Relations Board (NLRB) is on track to settle once and for all the question of what constitutes joint employment, and the standard being pursued is seen as employer-friendly for those that use a franchise business model as well as those using temporary staffing agencies. 173, significantly altered the legal framework under the NLRA for temporary employees procured through a "supplier employer" (i.e., temporary agency) in both unionized and union-free work environments. The retail industry, due to the seasonal nature of its business, has often bolstered its workforces with temporary employees through employment agencies. The NLRB again addressed the issue of joint employment with regard to temporary workers in the recent Miller & Anderson decision. Finally, if the company using contract labor is found to be a joint employer, it could make terminating a contract with a staffing agency or onsite service provider more difficult if those employees were involved in union activity or organizing. The NLRB’s “captive audience” doctrine, which allows employers to compel their employees under threat of discharge to attend and listen to anti-union speeches on company time, has long been a thorn in the labor movement’s side due to its status as management’s most important weapon in an election campaign. Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB. Several recent decisions from the National Labor Relations Board (NLRB), however, have cast uncertainty over the practice of retaining temporary workers, especially when it involves franchise operations. Consequently, they may desire different outcomes in bargaining. In Miller & Anderson, Inc., the NLRB ruled that permanent employees and temporary staffing employees may be combined in the same bargaining unit without the consent of either the employer or the staffing agency. The National Labor Relations Board today issued a complaint against Google after investigating the firing of several employees last November. One of the largest and growing segments of the retail sector is product and service franchises. Updated 8/5/2020. On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act. By clicking "accept" you confirm that you have read and understand this notice. A company using contract labor might also have a duty to bargain if the staffing agency employees decide to organize. The retail industry, due to the seasonal nature of its business, has often bolstered its workforces with temporary employees through employment agencies. In 2015, the U.S. had more than 100,000 retail franchise locations, not including food service operations. Should you have questions about the NLRB’s new ruling or need assistance in responding to union organizing activities, please contact the authors, your McGuireWoods contact, or any other member of the firm’s labor and employment group. The Federal Employees Retirement System will provide you with a basic benefit plan, Social Security benefits, and the 401 (k)-style Thrift Savings Plan (TSP). The Federal Employees' Compensation Act (FECA), 5 U.S.C. NLRB Rules and Regulations - Part 101 (Statements of Procedure) NLRB Rules and Regulations - Part 102 (Rules and Regulations) - eCFR Section 102* NLRB Rules and Regulations - Part 103 (Other Rules) - eCFR Section 103 * On May 30, 2020, the United States District Court for the District of Columbia issued an order in AFL-CIO v. To determine whether the employees share a community of interest, the Board examined a variety of factors. The NLRB case involved a Browning-Ferris Industries recyclry in California with about 60 unionized permanent employees, mostly working off site, and 240 temporary employees working on … It is important to recognize that the factors that led the Board to find a joint employer relationship in Browning-Ferris are common in many contracts between direct employers and staffing agencies in the retail sector. It further concluded that indirect control indicated joint employment status, which included routine actions such as BFI setting schedules and machine run times, and telling Leadpoint management what to do with employees, costs-plus contracts, etc. Sturgis decision, holding that temporary employees supplied by a staffing agency could be included in a single bargaining unit with an employer’s regular employees if: (1) the staffing agency and the employer were determined to be joint employers, and (2) the temporary employees shared a community of interest with the regular employees. Employers should continue to monitor developments from the NLRB closely and seek appropriate legal guidance to assess risks in their current business relationships. If the union wins an election including both traditional and temporary employees in the same bargaining unit, the two employers will be required to bargain with one another and the union. In the larger picture, changing the standard for multi-employer bargaining units will require companies to question the use of temporary employees. Ardelle Associates is a member of two trade associations it uses to hire temporary employees and that filed comments opposing Browning-Ferris and supporting the joint-employer rule.65. Welcome to the Fisher Phillips website. Prior NLRB decisions have held that temporary employees are joint employees who cannot be included in a union. Since 1990, the NLRB has held that the only way temporary workers … The Department of Labor, the Equal Employment Opportunity Commission (EEOC), and other federal agencies are working together to redefine joint employment in the context of other laws – to hold more employers liable to more employees in more circumstances. With the National Labor Relations Act (NLRA) remaining virtually unchanged by Congress since 1959 and the Supreme Court growing increasingly uninterested in interpreting it, the role of creating and changing labor policy governing most private-sector workers in America falls almost entirely upon the National Labor Relations Board (NLRB). Browning-Ferris, however, maintained the right to control several terms and conditions of employment, although it did not exercise this right on a regular basis or in any meaningful way. Thus, a bargaining unit may again be comprised of both permanent and temporary employees without employer consent as long as the employees in the unit share a community of interest and both the staffing agency and the host employer meet the test for “joint employer” under the National Labor Relations Act. When a union is elected to represent a bargaining unit that includes two different employers’ workers, both employers have a legal obligation to bargain with the union regarding the terms and conditions of those employees’ employment. Introduction to the NLRB. Prior to this decision,the Board would consider two companies to be joint employers only if they “share or codetermine those matters governing the essential terms and conditions of employment.” Significantly, the two companies must have actually exercised the right to control terms and conditions of employment, and the exercise of control must have been direct and immediate, not limited and routine. Government Health and Life Insurance Government health and life insurance programs are offered to all permanent NLRB employees and temporary employees after 1 year. We may not respond to unsolicited emails and do not consider them or attached information confidential. The NLRB’s latest decision continues its trend of expanding the reach of the Act and facilitating union organizing — which has been compounded by other recent decisions, including the NLRB’s Browning-Ferris decision that dramatically expanded the definition of “joint employer” in the franchise context. These decisions make it easier for unions to become the exclusive representatives of groups of employees who work for two different employers. This arrangement works as an efficient way for employers to manage the typical ups and downs of business both in stores and distribution centers. Welcome to the Fisher Phillips Careers section of our Website. NLRB Reverses Rule Regarding Temporary Employees. The more recent case, Miller & Anderson, involved a petition seeking an election in a proposed unit of sheet metal workers employed by Miller & Anderson, Inc. (the traditional employer) and Tradesmen International (a temporary employer). Second, on January 25, 2019, in SuperShuttle DFW, Inc., 367 NLRB No. The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance. Employer consent was not required. This new standard greatly increases the chance that a company using contract labor could be deemed a joint employer with any of its staffing agencies or onsite service providers. Sturgis, Inc. and Jeffboat Division, American Commercial Marine Service Company, 331 NLRB No. The M.B. The National Labor Relations Board (NLRB) issued a decision that could significantly broaden liability for businesses that employ contract workers. The union appealed seeking to overturn this precedent. Many of these franchises were small employers with fewer than 15 employees, not even big enough for coverage by Title VII. In a 3-1 decision the National Labor Relations Board made it easier to organize a company with a contingent workforce. And, once again, the NLRB has shown its willingness to upend well-established precedent in pursuit of its policy goals. Under prior Board precedent, such a combined unit could only be approved if the employers consented. The NLRB has hired temporary employees through a contractor—Ardelle Associates—to review comments on the proposed joint-employer rule. In light of these decisions, retailers would be prudent to take stock of their relationships with temporary staffing agencies and other labor vendors to identify their risk of being considered a joint employer or being subjected to a union election through temporary employees. We hope you will take a moment to get to know us better, learn about what sets us apart from other firms, and review our commitment to providing excellent client service on every matter we handle. Traditional and temporary employers often have very different, and sometimes conflicting, interests. That means we may disclose unsolicited emails and attachments to third parties, and your unsolicited communications will not prevent any lawyer in our firm from representing a party and using the unsolicited communications against you. This concept is known as joint employment, and it impacts retailers operating in a franchise environment as well as those who retain and use temporary workers. The National Labor Relations Board (NLRB) has recognized that an employee engages in protected concerted activity when he or she takes action “with or on behalf of other employees” concerning the terms and conditions of their employment. Last month a divided (3-2) National Labor Relations Board (NLRB) handed down a decision that fundamentally changes the employee-employer relationship for staffing agency employees, independent contractors, and their clients. In Browning-Ferris, the Board abandoned the actual-exercise-of-control standard in favor of a “right-to-control” standard. It concluded a multi-employer bargaining unit would be appropriate in the presence of a “community of interest” among employees within the proposed unit. The Board made the announcement on September 13 […] International Longshore and Warehouse Union, Locals 21 and 4 (9th Cir. Union Activity. National Labor Relations Act. They included common functions and duties; shared skills; functional integration; temporary interchange; frequency of contact with other employees; commonality of wages, hours, and other working conditions; permanent transfers; shared supervision; common work location; bargaining history; and extent of union organization. Although the Browning-Ferris case is now up on appeal, a decision will probably not be reached until 2017 and you would be wise to prepare for the worst, acting under the assumption that this standard will be applied for the foreseeable future. Given that business necessity for using temporary employees may well outweigh the risks, retailers may want to consider working with their vendors on implementing traditional union-free strategies with the non-traditional work force. If the staffing agency listens to its employees, responds to their concerns, and is considered a fair employer, the likelihood that the staffing company employees will seek third-party representation decreases. Most retailers that turn to staffing agencies to supplement their workforces during peak periods, whether in the store or the distribution center, will direct these individuals’ daily activities. This arrangement works as an efficient way for employers to manage the typical ups and downs of business both in stores and distribution centers. But in a 3-to-1 decision, the NLRB … Contributed by Julie Proscia, July 11, 2016. A B C D E F G H I J K L M N O P Q R S T U V W X Y Z. However, the Board is primed to change this rule in Miller & Anderson, Inc.1 On May 18, 2015, the NLRB granted review of a Regional Director’s 2012 decision to dismiss a union election … The facility extended temporary employment offers to approximately 60 to 70 workers provided by a staffing agency, at a cost of more than $300,000. Therefore, now that unions do not need employer consent to establish multi-employer units, they will have more discretion to decide the composition of the bargaining units targeted for organizing. 186 (2015) (Browning-Ferris) substantially changed the standard for determining when a “user” employer is deemed to be a joint employer of temporary or contingent workers (as well as the standard for determining joint employer status in a host of other commercial relationships, including outside … In a much-anticipated decision, the National Labor Relations Board (NLRB) on July 11, 2016, reversed its existing precedent on organizing of temporary employees. Employees have the right to attempt to form a union where none currently exists, or to decertify a union that has lost the support of employees. In Miller & Anderson, the NLRB changed course yet again. On February 25, 2020, the National Labor Relations Board released its long-awaited final rule regarding joint-employer status under the National Labor Relations Act (NLRA). The August 25 decision in two consolidated cases, M.B. This also exposes both employers to greater risk of liability for unfair labor practices. Oakwood Care Center, 343 NLRB 659 (2004). In the first case, Browning-Ferris (BFI) contracted with Leadpoint (a staffing company) to provide workers at BFI’s recycling facility. The NLRB again addressed the issue of joint employment with regard to temporary workers in the recent Miller & Anderson decision. The composition of the unit is important to both sides, as each attempts to include or exclude employees in an effort to create a unit most likely to vote in its favor. In a much-anticipated decision, the National Labor Relations Board (NLRB) on July 11, 2016, reversed its existing precedent on organizing of temporary employees. In that July 2016 case, the NLRB overturned precedent that generally prevented both the temporary employment agency and the user of the temporary employees from being considered employers of the same group of employees. We have provided information to help you in evaluating whether Fisher Phillips is the employer of choice for you. Those concerns have now borne out as the NLRB has filed more than 50 charges against franchises, including joint employer issues, since the Browning-Ferris decision. Despite the fact that BFI played no role in hiring, supervising, directly controlling work hours, or dictating wages paid to Leadpoint employees, it was found to be a joint employer. The NLRB voted 3-2 to expand the definition of joint employment, allowing a union to negotiate with a staffing buyer over both directly hired and staffing firm workers. Studies have found that businesses save between 10 and 30 percent of their labor costs by labelling their workers as independent contractors … Today’s Board decision returned to the rule established in M.B. In its decision, the NLRB ruled Browning-Ferris Industries of California was a joint employer of workers employed by staffing firm Leadpoint It requires little imagination to see how that could lead to conflicting interests between the joint employers and make it very difficult for the union and the two employers to negotiate a labor contract. Several recent decisions from the National Labor Relations Board (NLRB), however, have cast uncertainty over the practice of retaining temporary workers, … For more information, contact the author at EHarold@fisherphillips.com or 504.592.3801. While Browning-Ferris was not a decision in the retail sector, it raised significant concerns about the NLRB’s intention to force more companies to the bargaining table with unions, which certainly could impact retailers. Google must respond to the complaint by Dec. 16, and a hearing before an NLRB administrative law judge is set for April 12, 2021. Recommendation #1: Liberate Workers from Forced Anti-Union Meetings. In Browning-Ferris Industries of California, Inc., the NLRB dramatically expanded the joint employer standard. The Board held that a company’s contractual right to control, even if not exercised, indicated joint employer status. The consequences of such a conclusion could include being held liable for potential unfair labor practice charges filed by a discharged staffing agency employee. It ruled that Oakwood Care Center was wrongly decided and reinstated the rule from M.B. Employees covered by the National Labor Relations Act are afforded certain rights to join together to improve their wages and working conditions, with or without a union. Sturgis. Fisher Phillips Announces 2021 Partnership Class, Expected OSHA Changes Under The Biden Administration, fpVirtual Monthly Webinar Wednesdays With our Louisville Office - Employment Law Changes to Expect From the Biden Administration, Women's Initiative and Leadership Council, Affirmative Action and Federal Contract Compliance, Workplace Safety and Catastrophe Management, Federal Appeals Court Solidifies Straightforward View Of H-1B Specialty Occupation Definition, Tennessee Governor And Shelby County (TN) Health Department Issue New Orders Amid “Dire” COVID-19 Spread, What Employers Need To Know About Latest Federal COVID-19 Stimulus Package. We are proud of our tradition of inclusion, and are working to expand upon it. In 2004, a Bush-appointed NLRB overturned M.B. The NLRB found that the temporary employee's charge lacked merit citing undiscussed previous reasoning and because the charging employee's employment was temporary anyway. The new standard likely will make it easier for unions to win elections. In Miller & Anderson, Inc., the NLRB ruled that permanent employees and temporary staffing employees may be combined in the same bargaining unit without the consent of … Likewise, retailers often provide some specific direction about tasks to be performed when using vendors for conducting inventory, merchandising, cleaning, and other routine in-store maintenance. That, in turn, may lead to the hiring of more direct employees (which is a goal of the Board and unions). The National Labor Relations Board is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. The NLRB voted 3-2 to expand the definition of joint employment, allowing a union to negotiate with a staffing buyer over both directly hired and staffing firm workers. The complaint alleges Google violated parts of … The realities of these relationships in the modern economy will make it difficult to avoid all risk. Overruling a precedent established in 2004, the National Labor Relations Board (“NLRB”) has ruled that workers supplied by temporary employment staffing agencies to other employers may be included in a bargaining unit with the employees who are employed only by the other employer. Please note that unsolicited emails and attached information sent to McGuireWoods or a firm attorney via this website do not create an attorney-client relationship. 2. The Board held in favor of the union and eliminated the employer consent requirement. Few legal arenas are more volatile than labor law. 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