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 NLRB again addressed the issue of joint employment with regard to temporary workers in the recent Miller & Anderson decision. Traditional and temporary employers often have very different, and sometimes conflicting, interests. 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. Greenhoot, Inc., 205 NLRB 250 (1973). One of the largest and growing segments of the retail sector is product and service franchises. A company using contract labor might also have a duty to bargain if the staffing agency employees decide to organize. 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. The National Labor Relations Board (NLRB) issued a decision that could significantly broaden liability for businesses that employ contract workers. 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. 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. National Labor Relations Act. 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. The Board held in favor of the union and eliminated the employer consent requirement. 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. This also exposes both employers to greater risk of liability for unfair labor practices. Since 1990, the NLRB has held that the only way temporary workers … For more information, contact the author at EHarold@fisherphillips.com or 504.592.3801. 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. The retail industry, due to the seasonal nature of its business, has often bolstered its workforces with temporary employees through employment agencies. It concluded a multi-employer bargaining unit would be appropriate in the presence of a “community of interest” among employees within the proposed unit. 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 board announced the ruling last Thursday. 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. 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 … It ruled that Oakwood Care Center was wrongly decided and reinstated the rule from M.B. 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. 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 … 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. Consequently, they may desire different outcomes in bargaining. We are proud of our tradition of inclusion, and are working to expand upon it. 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 … 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. 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). 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. And, once again, the NLRB has shown its willingness to upend well-established precedent in pursuit of its policy goals. Sturgis decision was short-lived, however. A “user” employer is the entity that contracts with the “supplier” employer to obtain labor services for its business operations. The firings of Berland, Spiers and other employees … 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. Sturgis. 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. 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. The new ruling from the National Labor Relations Board judge means workers will have a much better chance of forming a union to negotiate better pay and safer working conditions. By clicking "accept" you confirm that you have read and understand this notice. If there was union organizing activity, it was generally limited to the particular location of a franchise or perhaps locations of a franchise sharing common ownership. These decisions make it easier for unions to become the exclusive representatives of groups of employees who work for two different employers. 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). The retail industry, due to the seasonal nature of its business, has often bolstered its workforces with temporary employees through employment agencies. 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. The NLRB has hired temporary employees through a contractor—Ardelle Associates—to review comments on the proposed joint-employer rule. But in a 3-to-1 decision, the NLRB … In 2015, the U.S. had more than 100,000 retail franchise locations, not including food service operations. 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. NLRB Reverses Rule Regarding Temporary Employees. 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. 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. 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. 2013) 721 F.3d 1122, 1130 [private sector employer seeking to enjoin union activity must pursue injunction through the National Labor Relations Board (NLRB)].) The new standard likely will make it easier for unions to win elections. 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. The NLRB originally changed its position in 2000 with the M.B. The contract between BFI and Leadpoint provided that Leadpoint was the sole employer of the employees. Studies have found that businesses save between 10 and 30 percent of their labor costs by labelling their workers as independent contractors … Sturgis, Inc. and Jeffboat Division, American Commercial Marine Service Company, 331 NLRB No. 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. 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. This arrangement works as an efficient way for employers to manage the typical ups and downs of business both in stores and distribution centers. 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. 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. 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). Welcome to the Fisher Phillips website. Franchisors were themselves rarely sufficiently intertwined with the operations of their franchisees to be considered employers under the National Labor Relations Act (NLRA). To determine whether the employees share a community of interest, the Board examined a variety of factors. Introduction to the NLRB. 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. Contributed by Julie Proscia, July 11, 2016. Second, on January 25, 2019, in SuperShuttle DFW, Inc., 367 NLRB No. 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. In a 3-1 decision the National Labor Relations Board made it easier to organize a company with a contingent workforce. In Browning-Ferris, the Board abandoned the actual-exercise-of-control standard in favor of a “right-to-control” standard. 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. Sturgis rule effectuated the fundamental policies of the Act by affording employees the “fullest freedom” “to choose the unit they wish to organize.”. The Board made the announcement on September 13 […] Workers … Union Activity. What Do These Decisions Mean For The Retail Sector? 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. 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