The National Labor Relations Board (NLRB or Board) has relaxed the standard for determining the appropriateness of bargaining units in the context of labor staffing firms – again. In its July 11 Miller & Anderson decision, the Board held that a union may seek to represent a unit of workers that combines employees who are jointly employed by the “supplier” employer (the staffing company) and the “user” employer with employees who are solely employed by the user employer, provided that the workers share a “community of interest.” The ruling removes a condition that the joint employers consent to such a combined unit that has been in place since 2004. By removing the condition, the Board has reinstated a prior standard in place between 2000 and 2004. It has also made union organizing of supplied workers easier, particularly as the decision comes in the wake of last year’s Browning-Ferris Industries case, which relaxed the standard for determining joint employer status. AGC, through its membership in the Coalition for a Democratic Workplace, filed an amicus brief asking the Board to retain the employer consent condition.
Contractors that use outside staffing firms may want to review their contractual arrangements with such firms and their actual practices related to supplied workers to assess the risk of joint employer and community-of-interest findings. More information and guidance on the significance of the Sturgis standard are found in the Labor & HR Topical Resources of AGC’s website. Once logged in as an AGC member, go to www.agc.org/topicalresources and select the main category “Other Legal Issues” and the subcategory “Temporary & Leased Employees.” For additional information and guidance on the new joint employer standard, select the main category “Unions/NLRA” and the subcategory “Joint Employers.”