In recent years, the National Labor Relations Board (NLRB) has begun finding separate companies jointly liable for compliance with federal labor laws under a joint or co-employment theory. Most notably, the Board has aggressively pursued joint employment claims against franchisors it considers to exercise control over their franchisee’s employees. Last month, the NLRB expanded this joint employer theory to include a temporary employment agency and the user of its labor services.
In Retro Environmental/Green Jobworks, LLC, the temp agency provided labor on a project-by-project basis. The agency conducted initial screenings for the workers and assigned them to the projects, but its customer directed their actual work. A union filed an election petition alleging that the temp agency and its client were joint employers under the NLRA. The companies sought to dismiss the petition on the basis that the project had ended, and that the companies had no other projects in the works.
The NLRB rejected this argument, finding that the two companies were joint employers subject to the union petition. The temp agency’s role in screening the workers, and its assignment of a field supervisor to make occasional visits to the worksites met the test for joint employment because of the influence exerted over the employee’s working conditions. Even though the client’s need for the agency’s services ended with the project’s completion, they could conceivably work together in the future. In other words, the NLRB said that it would allow a union election to certify a bargaining unit that would only apply if and when the two companies agreed to conduct business in the future.
The client has a clear incentive not to use the temp agency in the future due to the possible union representation, but a business decision on this basis alone could constitute an unfair labor practice charge. This decision places temporary employment agencies in a difficult position. Their attempts to facilitate their clients’ use of their services by pre-screening employees and providing on-site liaisons could result in the NLRB finding them subject to union organizing activities and unfair labor practice charges primarily aimed at their clients’ businesses.