A construction company and staffing firm are joint employers — even though the projects for which the staffing firm provided workers were complete, the National Labor Relations Board ruled in a decision released last month.

The case involved construction firm Retro Environmental Inc. and staffing firm Green JobWorks.

Retro brought in temporary workers from Green JobWorks for demolition and asbestos abatement work at two schools in Washington DC during the summer of 2015. Work was set to end in July 2015 in time for school to start in August, but a union brought forward a petition to represent full-time and part-time workers employed by Retro and Green JobWorks.

An NLRB regional director ruled in June 2015 against the union citing the projects were ending and there would be a cessation of operations. The regional director did not issue a decision on joint employment. However, the board in its decision last month overruled the regional director, finding that joint employment did exist and the cessation of operations exemption did not apply.

Retro did not have pending requests for more workers from Green JobWorks or more bids out for future work. However, the board found that Retro and Green JobWorks will continue to operate in the same geographic area, Retro had other projects that were to continue past July, Green JobWorks’ provided Retro with laborers on more than 10 to 20 projects over the past five years, and Retro’s president testified that he was satisfied with Green JobWorks’ services and had no reason to not use them in the future.

The board also found the workers were jointly employed by Retro and Green JobWorks, citing the case involving Browning-Ferris Industries of California and staffing firm Leadpoint Business Services.

Green Jobworks recruits and prescreens employees, performs drug tests and background checks, provides safety training among other things. The board also found Retro has a role in “codetermining the outcome of the hiring process,” including a contract with Green JobWorks that spelled out conditions in hiring, including prescreening and drug testing and other requirements.

Other findings:

  • The board also found that Green JobWorks assigned employees, could remove an employee, determined rate of pay, paid wages and provided benefits
  • Retro retained the right to request a replacement if it was unsatisfied with a worker, determined number of workers needed, hours worked, scheduling and supplies supervision.

“Thus, as in BFI, Retro ‘makes the core staffing and operational decisions that define all employees’ work days,” according to the board’s ruling.

Prior to the decision in the BFI case, the joint employer standard in the NLRB was determined by a business having “direct and immediate” control over the workers’ terms and conditions of employment, according to Fiona Coombe, director of legal and regulatory research at Staffing Industry Analysts. In BFI, the board broadened the scope of the standard to include “indirect control,” or the ability to exert such control.