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.
Late last week the NLRB issued its long awaited decision in Browning-Ferris Industries – drastically expanding who may be considered a “joint employer” under the National Labor Relations Act (NLRA).
In Browning-Ferris, the company (“BFI”) had contracted with a labor services company – Leadpoint – to provide workers for BFI’s recycling plant. The Leadpoint employees were hired and supervised by Leadpoint supervisors. Their schedules were set by Leadpoint schedulers. Any discipline was determined by Leadpoint managers. However, under its contract with Leadpoint, BFI set requirements for candidates and retained the right to refuse or discontinue use of any employee. Also, because of how the facility worked, BFI set the hours for the various shifts (though Leadpoint determined which workers would work each shift).
The Teamsters decided to organize the Leadpoint workers at the BFI facility. However, instead of filing their petition for representation solely with regard to Leadpoint, the Teamsters filed their petition also naming BFI as the employees’ employer, on the theory that Leadpoint and BFI were joint employers and, as a result, that BFI could be required to negotiate the union.
The Board agreed with the Teamsters, holding that BFI was a “joint employer” of the Leadpoint employees. As a result, the union was permitted to move forward with its petition.
In its decision, the NLRB rejected the prior test for joint employment – which required that an entity not only possess the authority to control employees’ terms and conditions of employment but also exercise that authority in a meaningful manner – and set a new rule: that indirect or reserved authority, even if not exercised, can be sufficient to establish a joint employment relationship.
This ruling is particularly important for companies that work with subcontractors or staffing firms, or are themselves contractors or staffing firms. Contracts governing staffing and subcontractor relationships regularly include provisions setting minimum standards for the individuals performing the services, the right to refuse workers or discontinue their use, and other requirements relating to the individuals who are performing the services. There are strong business reasons to include these provisions, but, in light of the Board’s ruling in Browning-Ferris, companies need to be aware that the provisions which keep control over these aspects of the relationship also open the possibility that the company receiving the services will be deemed a joint employer under the NLRA. Companies entering into these relationships should carefully weigh the benefits of control against the risk of being deemed to be a joint employer and reflect their desired balance in their contract, practice and procedures.