NLRB Issues New Standard for Determining Joint-Employment Among Temporary Employees

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

Today, the National Labor Relations Board (NLRB) issued a long-awaited decision in a case involving use of staffing agency employees at a recycling center in California. The Board, voting 3-2, overturned the current standard by "revisiting" common-law principles pertaining to a master-servant relationship. If two companies are deemed to be joint-employers of the same workers, then the employees provided by a staffing agency, subcontracting arrangement or other contingency workforce structure will be subject to any bargaining units and rights of the other employer.

Under the new standard, the Board "may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of common law, and if they share or codetermine those matters governing the essential terms and conditions of employment." Factors the Board will consider in finding control over employees includes the authority to hire, fire, discipline and direct employees, which have been utilized in recent years, in addition to new factors of control such as dictating the number of workers to be supplied, controlling scheduling, seniority, overtime work and assignment of work.

Of course, each of these issues is a question of fact, and the dissenting Board members expressed concern that employers have no real, workable guidance for determining joint-employment status under the new standard. If you have any questions regarding joint-employment issues, contact an attorney in our Firm.