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Friday, July 22, 2016

NLRB Confirms Joint Employer for Temps

 By: Thomas Eden

The National Labor Relations Board is again changing the rules for employers, but the outcome is not really a surprise. The NLRB ruled 3-1 in Miller & Anderson, Inc., that unions can combine in a single bargaining unit consisting not only of a company’s regular employees, but also of temporary employees performing similar work who are jointly employed by the staffing agency and the employer. The decision is significant particularly in light of the expansive use of “temporary” or “leased” employees in the local workplaces.

Under the standard that has applied for about the past 12 years until now, a combined bargaining unit like this was not allowed unless the employer of the temporary employees (the “supplier” employer) and the employer of the regular employees (the “user” employer) both consented. The Board majority cited data from the Bureau of National Labor Statistics and other publications indicating that there may be as many as 4 million temporary workers in the United States by the year 2022, and noted that temporary employees often work alongside regular employees in industrial and blue-collar jobs.

The Board said, temporary workers are actually employees of the user employer as well as the staffing agency under a theory of joint employment. The Miller & Anderson decision follows the Board’s controversial Browning Ferris Industries decision from last year, which liberalized the test for joint-employer status in the temporary worker context.  Under BFI, the joint-employer relationship will be found when the supplier and user employer share responsibility for determining the essential terms and conditions of the temporary worker’s employment. Read together, BFI and Miller & Anderson create a one-two punch for employers: BFI makes it more likely that temporary employees will be considered “jointly employed” by the user employer, and Miller & Anderson makes it more likely that the “jointly employed” temps will wind up in the same bargaining unit with regular employees.

Common Sense Counsel:  As a result of the Miller & Anderson decision, an employer’s use of temporary employees now creates a higher risk for union organization attempts. Companies will need to reevaluate their labor relations action plans to include the concerns of temporary employees, including the pay and benefits of temporary employees. Disciplining temporary employees could create potential joint-employer liability. 
However, you can be proactive by taking these steps:.

Critically have all your service agreements reviewed;
Make sure they have their own employment policies and employee handbooks; 
Look at how the work performed by your employees is different from, or the same as, the work performed by the staffing employees;
Look at pay, working conditions, type of work, etc, to see if they are the same or uniquely different; and
Include an expansive indemnification clause in your contract.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. The above was taken from a Constangy Client Bulletin. He can be contacted at or 334-246-2901. Blog at with link to full Bulletin.