2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.
1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement
The Department
Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.
The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, lowering unemployment and workers compensation expenses, tax withholding responsibility, and many of the other attendant costs of the employment relationship.
Companies who use temporary staff (I will call them “user” companies here) often take careful measures to limit the risk of being determined a joint employer with the company providing temporary staff. Those steps include having the temporary staffing company (I will call them “temporary staff providers” here) be responsible for all hiring, discipline, and termination decisions. In some cases, the user company relies on the temporary staff provider for on-site supervision and sometimes even human resources support on-site. In most cases, the user company has an indirect impact on wages of the temporary staff by virtue of the negotiated labor rate but, in almost all cases, all other employment benefits are provided solely by the temporary staff provider.
What if a union targets the temporary workers at a user company’s workplace for organization? If the union is successful, who is the “employer” required to recognize and bargain with the union? Until recently, the answer was pretty easy. As long as the user company was careful not to exert direct control over the terms and conditions of employment of the temporary workers, then the employer required to recognize and bargain with the union was the temporary staff supplier only. Efforts made by unions to argue for a joint employment determination were usually unsuccessful. All that has changed.
What does the case say?
Last Thursday, in Browning-Ferris Industries of California, Inc., the NLRB decided that the user company and the temporary staff supplier are a joint employer. The user company was Browning-Ferris (BFI), which operates a recycling facility. The temporary staff supplier was Leadpoint. The Teamsters Union tried to organize a group of 240 Leadpoint employees working at the BFI facility. The temporary staff performed work different than that performed by the BFI regular workforce. The BFI regular workforce was already unionized. Leadpoint provided on-site supervision and an on-site human resource representative. Leadpoint also kept control of hiring decisions, subject to certain broad criteria imposed by BFI. When there were on-site misconduct issues involving temporary staff people, BFI made Leadpoint aware and Leadpoint was responsible to investigate and take action, though BFI retained the right to discontinue the assignment of any of the temporary staffers. In other words, Browning-Ferris did all “right” things in its effort to remain separate from Leadpoint.
Continue Reading Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”
In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend of quicker elections will continue.
The employer community has great concerns about the NLRB rule and the resulting reduction in the time for union representation elections. It is often referred to by employer groups and representatives as the “quickie election rule” or the “ambush election rule.” The time between petition filing and election is a crucial period for employer communication to employees. When a union files a petition for representation election, the union is usually at the peak of its support among employees. Between petition filing and election, the union’s representatives will actively campaign for employee votes in the upcoming election. Employers have the same right to communicate lawful and honest information to employees in an effort to influence them to vote to stay non-union. An abbreviated time for communication makes it much more difficult for the employer to convey the message, especially in a large workforce. Therefore, shortening the time between petition and election may give unions an advantage. Although, it is interesting to note that in the months since the rule took effect the union percentage win rate in elections has been about 62 percent, which is very close to the overall union win rate in elections for the past few years.
Continue Reading Another Federal District Court upholds NLRB expedited election rules
The NLRB’s controversial “quickie election” rule is slated to take effect April 14, 2015. That’s next week! Two lawsuits filed by employer groups in January to block the rule are pending in separate federal courts of appeals. However, absent a “hail Mary” ruling by one of these courts, employers have to ask themselves if they
On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”
According to the Board’s majority opinion, a
If you have been trying to follow recent NLRB cases and guidance for what is considered legal in handbook policies, and if you feel a little lost, you are not alone. No employer wants handbook policies that a federal government agency considers illegal, but lately it has been a bit of a challenge to figure
On December 18, 2014, we posted about the National Labor Relations Board (“NLRB”) proposed rule which will expedite procedures for union representation petitions and elections. The proposed rule is expected to make it easier for unions to successfully organize employees because it will curtail the time available for employers to communicate to employees before the
On Friday, December 19, 2014, the NLRB General Counsel’s office issued complaints against McDonalds and 13 of its franchisees, alleging that they jointly retaliated against workers who participated in the many fast food minimum wage protests that occurred around the country earlier this year. Many business analysts are projecting that a Board decision finding that
On December 15, 2014, the National Labor Relations Board (“NLRB” and “Board”) issued a decision in which the three Democratic-appointed members of the Board struck down the standard that the NLRB has applied for the last 30 years to determine whether to defer to arbitral decisions in cases that also involve alleged violations of Section
In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies