NLRB to Revisit Joint Employer Test
June 2, 2014 by Adrian Barnes
The National Labor Relations Board has long recognized that employees can have more than one employer, and can be jointly employed for purposes of collective bargaining. This joint employer issue results in some complexity in the way labor law is applied. Beeson, Tayer and Bodine (BT&B) provides legal representation for public and private unions as well as individual employees in the Sacramento and Oakland area. Here we provide you a summary of what revisiting the joint employer test may entail. To see additional information and implications you can search joint-employment on the National Law Review website.
When the NLRB declares the company that obtains contract labor and the labor contractor as a joint employer, a union can force both the labor contractor and the company, the entity that in reality controls the employment conditions, to the bargaining table.
Yet, the NLRB’s current standard for defining joint employer status makes it overly difficult to establish joint-employer status. The current test does not address the realities of the modern workplace, where facility operators frequently rely on labor contractors to supply workers, while retaining control over both their and the labor contractor’s workforce. The current standard allows contractors and facility operators to avoid, as a practical matter, the basic legal obligation to recognize and bargain with workers’ chosen representatives, because such employees cannot engage in meaningful bargaining when the party that exercises control and influence over their working conditions is not required to participate or bargain.
In July 2013, Teamsters Local 350 filed a petition seeking to represent a unit of employees jointly employed by Browning-Ferris Industries (“BFI”) and Leadpoint Business Services (“Leadpoint”), a labor contractor, at a single recyclery. There was no dispute that Leadpoint employs the unit employees. The sole issue before the NLRB’s Regional Director was whether Leadpoint and BFI are joint employers of the unit employees.
Teamsters Local 350, represented by Susan Garea of Beeson, Tayer & Bodine, argued that BFI has de facto control over the terms and conditions of the unit employees’ employment and that meaningful collective bargaining cannot take place if BFI is not found to be a joint employer. Applying the NLRB’s current standard, the Regional Director determined that employees in the petitioned-for unit were solely employed by Leadpoint. Local 350 filed a Request for Review of the Regional Director’s determination. The NLRB granted that Request, and has now invited briefing on a number of important issues including: whether the NLRB should adopt a new standard for finding joint employer status; what factors the NLRB should consider in developing a new standard; how a new standard should be defined; and, what rationale should underpin a new standard? Along with requesting additional briefing from Teamsters Local 350, BFI and Leadpoint, the NLRB has invited amicus briefs from interested parties. Although we believe that even under the current standard BFI is a joint employer, our hope is that the NLRB will take this opportunity to adopt a broader joint-employer standard that better addresses the realities of today’s workplaces where more and more companies are using labor contractors and staffing agencies to supply workers.
An NLRB decision revising the test for joint employer status as we suggest would complement legislative efforts such as AB 1897, co-sponsored by the California Labor Federation, the California Teamsters Public Affairs Council, and the UFCW Western States Council, which is intended to hold companies accountable for serious violations of workers’ statutory rights (e.g., wage theft and health and safety violations) committed by their labor suppliers.
Please check the BT&B employment law blog for updates on this case. You can follow us on Twitter to get more information on complicated union and employee rights.
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