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Dec 08, 2015

NLRB says staffing agency employees can bargain with client employer

Labor Relations 

In a ground-breaking decision, the National Labor Relations Board expanded its definition of a “joint employer” and ruled that temporary staffing agency workers had the right to form a union and bargain not only with their agency employer but also with their on-site client employer.

In a ground-breaking decision, the National Labor Relations Board expanded its definition of a “joint employer” and ruled that temporary staffing agency workers had the right to form a union and bargain not only with their agency employer but also with their on-site client employer.

In this case, a recycling company used its own union-represented workers to gather and move materials in preparation for sorting, carried out separately by the staffing agency employees in an indoor facility. The union sought to represent these staffing agency workers in a separate bargaining unit.

The staffing agency employed its own on-site manager, shift supervisors, and line leads, who were tasked with executing all major employment decisions such as hiring and firing. However, the client did exert some influence over the staffing agency workers’ labor conditions.

In one instance, the client told the staffing agency to fire two workers passing a whiskey bottle on the job and another worker who was caught on video punching a paperwork drop box. The client also controlled the speed of the conveyor belts heading into the sorting facility and periodically told the agency workers to work faster.

The Board’s new test begins by evaluating whether the two entities are common-law employers of the workers, and whether they “share or codetermine those matters governing the essential terms and conditions of employment.” Examples of essential terms and conditions include: hiring, firing, disciplining, supervising, directing, scheduling, paying, assigning work, and setting the manner and method for performing work.

The Board will no longer require that the client employer actually exercise this authority; simply having the right to do so is sufficient. The intent is to ensure that the collective bargaining process includes all employers who have the power to affect workers’ wages, hours, and working conditions (Browning-Ferris Industries of California, NLRB, August 2015).

Tips: Many employers who use staffing agency employees exercise daily direct control over the workers, which will almost certainly meet the Board’s new joint employment test. However, there are two small pieces of good news. First is the Board’s statement that a client employer “will be required to bargain only with respect to those terms and conditions over which it possesses sufficient control for bargaining to be meaningful.” The second is a practical consideration: in temp-to-hire situations, in which the staffing agency workers are employed only a limited period of time (60 or 90 days) before being hired by the client, it’s unlikely that they will form enough of a bond to consider forming a union on their own. Questions regarding labor law in the workplace? Contact your Vigilant employment attorney. With one flat, monthly fee, we help businesses navigate the nuances of labor laws in the workplace.
 

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