The National Labor Relations Board just made it much easier for unions to organize employees of staffing firms – sometimes called temp agencies.
It used to be that both the staffing firm and the client had to consent before a union could represent a group of employees that included both staffing firm employees and your regular employees.
However, under the NLRB’s new standard, consent isn’t required. This means that a union can lump together staffing firm employees and regular employees, even though they are employed by different companies and viewed and treated as separate groups.
Under the NLRB’s decision, unions will also have an easier time organizing all of a staffing firm’s employees, regardless of where they work or are assigned.
As a result of the NLRB’s decision, unions will have a far easier time organizing.
So what can you do? Here are 3 steps all Companies that work with staffing firms should take in response to the NLRB’s new standard:
- Ask your staffing firm what steps they’re taking to improve employee satisfaction and avoid unionization, keeping in mind that the lowest cost provider may bring with it lower employee satisfaction and higher risk of unionization.
- Take a close look at your company’s union avoidance efforts. Make sure that you’re paying attention to all employees – both direct and those through staffing companies – and consider stepping up your union avoidance efforts by educating your team about the realities of unionization and how to spot organizing campaigns.
- Finally, make sure your agreement with your staffing firm includes a cooperation clause so that, if there’s an organizing campaign, you’re in the best position to work together quickly to respond.
In avoiding unions, the best defense is a good offense. Take steps now to ensure that you – and your staffing firms – are in the best position possible to avoid union organizing efforts.
As fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.
Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER
- Proposed changes to overtime regulations that will make more employees overtime-eligible
- New standards in accommodating religious practices and pregnancy
- The NLRB’s “quickie” election rules and what they mean for union organizing efforts
- Raising the standard to establish that a worker is properly classified as an independent contractor
- The EEOC’s new position on wellness programs and disability discrimination
- Expanding employee retaliation and whistleblower claims
- New state and local laws that impact minimum wage, paid sick leave and accommodation requirements
CLE Credit Available | This program has been submitted to the HR Certification Institute for review.
Contact Annie Darmofal at 312.476.7626 or firstname.lastname@example.org
You may want to include a review of your employee handbook in your “spring cleaning” this year.
Employee handbooks and work policies have been at the forefront of the National Labor Relations Board’s mind recently. The Board has held that a work rule may violate Section 8(a)(1) of the National Labor Relations Act if the rule has a “chilling effect” on employees’ Section 7 activity – whether it be union activity or simply discussing the terms and conditions of employment with one another. According to the Board, a work rule not only violates the Act if it explicitly restricts this protected activity, but also if it: (1) can be reasonably construed by its language to prohibit protected activity; (2) was promulgated in response to union or other protected activity; or (3) was actually applied to restrict the exercise of the protected rights.
Earlier this spring, the Board’s General Counsel issued a detailed report providing examples of unlawful policies as well as their lawful counterparts. The report discusses:
- Confidentiality Rules
- Rules Regarding Employee Conduct toward the Company and Supervisors
- Rules Regulating Conduct Towards Fellow Employees
- Rules Regarding Employee Interactions with Third Parties
- Rules Restricting Use of Company Logos, Copyrights, and Trademarks
- Rules Restricting Photography and Recording
- Rules Restricting Employees from Leaving Work
- Conflict-of-Interest Rules
The full text of the report can be found at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.
In light of this report, we recommend that you carefully review all of your policies, with particular emphasis on the ones listed above.
This week, the U.S. Chamber of Commerce and several business trade groups announced that they jointly filed a complaint in federal court against the National Labor Relations Board (NLRB), seeking to strike the Board’s new “ambush” election rule that shortens the period between the filing of a union election petition and the election itself. The NLRB adopted the rule on Dec. 12, 2014 in a 3-2 vote. If not overturned, the rule is set to go into effect on April 14, 2015. See our previous post here.
The complaint alleges that the new rule violates the National Labor Relations Act, the Administrative Procedure Act, and employers’ free speech and constitutional right to due process. Read the press release here.
Joining the Chamber in the lawsuit are the Coalition for a Democratic Workplace (CDW), National Association of Manufacturers (NAM), National Retail Federation, and Society for Human Resource Management (SHRM). Worth noting is that this is only the third time SHRM has challenged a federal regulation in court.
The National Labor Relations Board has issued final rules that are intended to speed up the union election process. These new rules will take effect on April 14, 2015. Read more about the final rule in the Federal Register.
The new election rules are being heralded by organized labor and decried by many in the business community. The new rules compress the timeline between petition and election, give unions access to more information about employees, set up new employer procedural requirements, and limit hearing issues and appeals that may be raised before an election. The end result is that the timeframe from petition to election will be significantly shorter, which is generally viewed as an advantage for unions.
Unless these rules are overturned, employers are well-advised to take precautionary steps to prepare for a union organization effort, rather than waiting for a representation petition to be filed.
Today, the National Labor Relations Board held that employees have a right to use their employer’s communications systems – including email – for protected activity during non-working time, unless the employer prohibits all non-business use. In so holding, the Board overruled its 2007 precedent-setting decision on the same issue.
“Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” Thursday’s decision said.
The wording here is important, and indicative of the division among the NLRB on this issue, as it specifically applies to workers who have been granted access to employer’s email systems, and offers an “out” for companies that ban non-work-related use of email. Of course, most employers permit some non-business use of communications systems, and so this carve-out is a narrow one.
The case is Purple Communications Inc. and Communications Workers of America, AFL-CIO; case numbers 21-CA-095151, 21-RC-091531 and 21-RC-091584 at the National Labor Relations Board. Read the entire case history here and view our previous posts on this issue by following the “Related” links below.
On Thursday, the National Labor Relations Board re-opened the question of whether workers have a right to use their employers’ communications systems (including email) for union organizing and other protected activities.
In 2007, the NLRB handed down its decision in Register-Guard, holding that employees don’t have the right to use employer email systems for non-business purposes (such as union organizing). Since then, many employers have implemented policies requiring that email only be used for business purposes.
The question arose again in 2013 when Purple Communications was accused of committing an unfair labor practice for prohibiting the use of company equipment for non-business purposes. The Administrative Law Judge relied on Register-Guard and dismissed the charge; however, both the NLRB’s General Counsel and the Communications Workers of America filed exceptions, encouraging the NLRB to overrule Register-Guard and find that employees who use email for business purposes have the right to use it for union or organizing activity. In response, the NLRB has invited the public to weigh in (by way of amicus briefs) on whether the Board should overrule Register-Guard .
Employer groups will no doubt come out strongly in favor of upholding Register-Guard , but with the current composition of the NLRB, the employer-friendly holding of Register-Guard might be short-lived.