CLIENT ALERT: NLRB Rules Temporary Employees Can Be Part of Bargaining Units

On Monday, July 11, 2016, the National Labor Relations Board (“NLRB”) released a decision, Miller & Anderson, Inc., No. 05-RC-079249, which makes it easier for temporary workers to be included in a single bargaining unit with their permanent counterparts.

In Miller, the NLRB overturned a Bush-era standard that provided that a group of jointly employed temporary workers could not unionize with permanent employees without the approval of both of their employers: the permanent employer and the temporary staffing agency.  Now, Union petitioners seeking to represent employees in bargaining units that combine both solely and jointly employed employees may do so without employer consent if those employees are: (1) employed by the same primary employer, and (2) share a “community of interest.”

 The Board further ruled that a primary employer will be required to bargain regarding all terms and conditions of employment for permanent unit employees it solely employs.  However, it will also be obligated to bargain over the terms and conditions of employment over those temporary workers which it jointly employs and which it possesses the authority to control.

Given this decision and the Board’s decision in Browning-Ferris Industries, which loosened the definition of “joint employer”, it is likely that more companies will be deemed to be joint employers that must bargain with a larger and more powerful “mixed” bargaining units consisting of both temporary and permanent workers. 

By handing unions this victory, employers will now have to reevaluate whether using temporary placement agencies and subcontractors is a cost-effective business plan.

On Monday, July 11, 2016, the National Labor Relations Board (“NLRB”) released a decision, Miller & Anderson, Inc., No. 05-RC-079249, which makes it easier for temporary workers to be included in a single bargaining unit with their permanent counterparts.

In Miller, the NLRB overturned a Bush-era standard that provided that a group of jointly employed temporary workers could not unionize with permanent employees without the approval of both of their employers: the permanent employer and the temporary staffing agency.  Now, Union petitioners seeking to represent employees in bargaining units that combine both solely and jointly employed employees may do so without employer consent if those employees are: (1) employed by the same primary employer, and (2) share a “community of interest.”

 The Board further ruled that a primary employer will be required to bargain regarding all terms and conditions of employment for permanent unit employees it solely employs.  However, it will also be obligated to bargain over the terms and conditions of employment over those temporary workers which it jointly employs and which it possesses the authority to control.

Given this decision and the Board’s decision in Browning-Ferris Industries, which loosened the definition of “joint employer”, it is likely that more companies will be deemed to be joint employers that must bargain with a larger and more powerful “mixed” bargaining units consisting of both temporary and permanent workers. 

By handing unions this victory, employers will now have to reevaluate whether using temporary placement agencies and subcontractors is a cost-effective business plan.

On Monday, July 11, 2016, the National Labor Relations Board (“NLRB”) released a decision, Miller & Anderson, Inc., No. 05-RC-079249, which makes it easier for temporary workers to be included in a single bargaining unit with their permanent counterparts.

In Miller, the NLRB overturned a Bush-era standard that provided that a group of jointly employed temporary workers could not unionize with permanent employees without the approval of both of their employers: the permanent employer and the temporary staffing agency.  Now, Union petitioners seeking to represent employees in bargaining units that combine both solely and jointly employed employees may do so without employer consent if those employees are: (1) employed by the same primary employer, and (2) share a “community of interest.”

 The Board further ruled that a primary employer will be required to bargain regarding all terms and conditions of employment for permanent unit employees it solely employs.  However, it will also be obligated to bargain over the terms and conditions of employment over those temporary workers which it jointly employs and which it possesses the authority to control.

Given this decision and the Board’s decision in Browning-Ferris Industries, which loosened the definition of “joint employer”, it is likely that more companies will be deemed to be joint employers that must bargain with a larger and more powerful “mixed” bargaining units consisting of both temporary and permanent workers. 

By handing unions this victory, employers will now have to reevaluate whether using temporary placement agencies and subcontractors is a cost-effective business plan.


Hard-Fought Battle Results in Significant Client Victory in Connecticut Supreme Court

Posted on Tue, Mar 08, 2016

          On March 7, 2016, the Connecticut Supreme Court released Standard Oil v. Administrator, Unemployment Compensation – one of the most significant employment law decisions in years.

          The Supreme Court ruled in favor of Standard Oil’s challenge to the determination by the Administrator of the Connecticut Unemployment Compensation Act that it misclassified installer and technicians as independent contractors instead of employees.  This decision results in a victory not only for Standard Oil, but for other businesses that use independent contractors.   

          The decision addresses the first two prongs of the ABC test — the Connecticut test, to determine whether a worker is an employee or an independent contractor.

           As to the first prong, the Supreme Court found that Standard Oil satisfied its burden of showing that the installers/technicians were free from its control and direction under part A of the ABC test.

           An issue of first impression, the Supreme Court interpreted whether “places of business” under part B extended to the homes of Standard Oil’s customers.  The Court concluded that the meaning of “places of business” should not be extended to the homes in which the installers/technicians worked, unaccompanied by Standard Oil’s employees and without its supervision.  As the homes of Standard Oil’s customers, unlike its business offices, warehouses, and other facilities, were under the homeowners’ control, they were not “places of business” under part B of the ABC test.

           Rejecting a broad interpretation of “places of business,” the Supreme Court acknowledged the practical implications of such an interpretation — it would convert every household into a place of business for any company that performs services at a customer’s home, thereby limiting an employer’s ability to subcontract work. 

           Standard Oil provides home heating oil delivery, alarm system monitoring and service to customers.  It also engaged installers (to install heating oil and alarm systems) and technicians (to repair and service heating systems at times of peak demand), as independent contractors instead of employees.

           In 2008, the Administrator, audited Standard Oil’s payroll to determine whether it paid the correct amount of unemployment compensation taxes on its workforce.  It accused Standard Oil of misclassifying the installers and technicians as independent contractors instead of employees, reclassified them as employees, and assessed taxes and interest. 

           Standard Oil stood firm on its conviction it properly classified its workforce.  They argued that the installers/technicians were exempt from unemployment compensation taxes since they were independent contractors.

           Now, more than six years since the commencement of the audit, the Connecticut Supreme Court vindicated Standard Oil, ruling that it was right all along.  

           The Supreme Court’s opinion can be found on its website here.