Thursday’s decision by the National Labor Relations Board broadening the criteria for joint employer status may not have much impact on staffing firms, says the American Staffing Association.
In a press release this morning, Stephen Dwyer, the ASA’s general counsel, said, “Although we cannot definitively predict the long-term impact of the decision, prior board decisions that effectively made it easier for temporary workers to unionize did not demonstrably result in increased unionization of such workers, and that largely remains the case today.”
The NLRB’s decision “departed from more than 30 years of legal precedent,” said the ASA. Until yesterday, a staffing agency (or other provider) and another company would be considered joint employers only if both exercised the right to control aspects of working conditions. The control had to be immediate and direct.
Now, the NLRB says co-employer status can be imposed if the business merely has the contractual right to control. Actually exercising that control is no longer required.
An analysis by Fisher & Phillips employment attorneys notes that the NLRB emphasized that the decision is limited to the unique facts in the specific case it was deciding. However, they note that “employers and temporary service providers alike should scrutinize the parameters within their written service agreements and their underlying practices for reference to right to control. This includes an analysis of pre-employment qualification and hiring standards, assignment and retention of individual temporary employees, shift schedules, workload and pace of work, and wages and benefits.”