As I was explaining to a client last week that just “sending her back to the temp agency” likely would not be a simple end to a complicated sexual harassment problem, the National Labor Relations Board issued yet another decision impacting joint-employer issues. The Board’s new opinion in Miller & Anderson, Inc., through the joint-employer concept, makes it easier for workers to elect union representation at your company. So, even if your company is nonunion, this Labor Board development is of interest.

The Big Issue

Most companies become union as a result of a petition and subsequent vote of their employees. First, 30% of the employees must sign petition cards requesting a representation election. Then, if that occurs, the Board subsequently holds an election, and, if a majority of the workers vote for union representation, then they become union workers with the right to bargain collectively over terms of employment at your company. Obviously, one of the big issues in the procedure is who gets to vote. If you increase the number of workers with no historical allegiance to the company, the more likely the vote will be pro-union. Enter the Miller & Anderson decision.

The Specific Issue

The specific issue in the Miller & Anderson decision was whether workers referred by a temporary agency can vote in an election and ultimately be represented in the collective bargaining process. Recall our previous blog posts regarding the McDonald’s franchisor-franchisee case and the Browning-Ferris temporary workers case. In both of those posts, we described how the Board was doing everything possible to impose joint-employer status on franchisors and “users” of temporary workers. The principle in those cases was that, if the company has potential control over the workers, then an employer-employee relationship is established. The Board’s new Miller & Anderson decision extends this joint-employer principle even further and establishes that, once the temporary workers are determined to be employees, they also can vote and participate in collective bargaining activities assuming other normal labor law requirements are met. An agreement between the two employers (the user company and the temp agency) to allow this is not required (which was the Board’s old rule) and typically is the case in so-called multi-employer bargaining settings.

What it Means to You

The bottom line is that, in the labor relations setting as well as in many other settings like employment discrimination and wage and hour law, it continues to become easier for workers employed by another company legally to become your employees. If the other company is hired to do a specific job and sends its own supervision, such as with a medical clinic or with a cleaning service, then your company probably is safe. On the other hand, if those workers come onto your site and perform work traditional to your business and report to your supervisors, then you no longer are in the safe zone. And now, if those workers come in with union backgrounds – or if they do not like you very much – they can instigate organizing activity and ultimately can have a direct and devastating impact on the percentage of employee support for a union vote. Because of this development, all employers would be wise to look at all of their temporary-worker arrangements to be sure that they are necessary and serving the intended needs of the company.