A ruling is due any day now from the National Labor Relations Board in a case that could redefine some staffing buyers as joint employers under the National Labor Relations Act. Experts don’t believe it will have a large impact on most staffing supplier-staffing buyer relations at this time, but a ruling for the union would signal another administrative expansion of joint employment.
In this case, the Teamsters want to organize both employees of a staffing firm and workers employed directly by staffing buyer Browning-Ferris Industries at a recycling facility in Milpitas, Calif. The union argues for a more expansive definition of joint employer that would make BFI an employer for the purposes of organizing both directly-hired and staffing firm workers at the site. In August 2013, an NLRB regional director ruled against the union, saying the staffing firm, Leadpoint Business Services, was the sole employer. But the full NLRB agreed in April 2014 to review the decision.
It’s the NLRB’s decision that is now expected to soon be released. And the board could rule for the union.
“The long-term impact is hard to predict exactly; our general sense is it should not have a significant impact on the use of staffing services or on staffing firm-client relations,” said Ed Lenz, senior counsel at the American Staffing Association, referring to a possible ruling that favors the union.
An NLRB decision would only impact the joint employer definition under the National Labor Relations Act, Lenz said. It would not impact the question of joint employment under other federal laws or in areas such as workers’ comp that are governed by state law.
Expanding the concept of joint employment in staffing arrangements should not have a significant impact on collective bargaining, Lenz noted, since the decline in private-sector union membership means that a relatively small percentage of staffing firm employees are assigned to clients who have collective bargaining agreements. Nor are temporary employees likely to be of much help in organizing non-union worksites since they generally have shown little interest in joining unions.
A survey during a recent Staffing Industry Analysts’ conference call among buyers backs this up with 35% of those surveyed citing no union membership at their companies and 32% saying that less than a tenth of their workforce operates under a collective bargaining agreement.
Some commentators believe the NLRB will rule to expand the definition of who is an employee, although the board’s decision can be appealed to the courts.
However, private sector unionization is not the threat here, said Eric Rumbaugh, a partner with law firm Michael Best & Friedrich LLP. Instead the concern is this would represent another step in broadening who is considered an employer if the NLRB rules for the union.
“The big takeaway is this, it is part of a mosaic of the encirclement of the employment relationship,” Rumbaugh said. “There’s an administrative belief that it’s natural, good and to be desired that everyone is someone’s employee. And if there are multiple employers, then they are an employee of everyone.”
There is an enforcement bias that if a person is not someone’s employee then that person will be taken advantage of. While that is sometimes true, it is not always true, he said. While some relationships may be abused, there is not enough to justify a sweeping enforcement position that everybody is an employee of every entity they interact with.