Recent NLRB Decision Modifies Rights of Temporary Workers

Are temporary workers from an employment agency included as part of the bargaining unit at the workplace to which they are assigned? After a recent National Labor Relations Board ruling, the answer to that question may likely be “yes.” On August 27, 2015 the NLRB issued a decision revising its “joint-employer” rule and, with it, the scope of a temporary worker’s right to participate in union activities at the place of assignment.

In Browning-Ferris Industries of California, Inc., the Board adopted a new standard for the joint-employer relationship. Prior to Browning-Ferris, the placement agency’s customer would only be considered a joint-employer if: (1) it possessed the authority to control employees’ terms and conditions; and (2) actually exercised that authority. In Browning-Ferris, the Board deleted the second part of that test. Now, so long as the customer has the theoretical authority to control, even if it never actually exercises that control, it will be deemed a joint employer.

This means that temporary workers placed with the employment agency’s customer may have a right to representation and engage in collective bargaining with the customer’s management alongside the customer’s own direct employees. Employers should consider this when evaluating the engagement of temporary workers as an employment strategy.
If you have any questions about this new standard, or would like to know how it might affect you or your company, please contact Karl Ulrich at kulrich@ssdlaw.com | 937-222-2052

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