NLRB gets an earful on its “joint employer” definition

A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of “joint employer” for purposes of collective bargaining.  It’s a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships.  The workers who got your last-minute Father’s Day gift from the Amazon warehouse to your front door, for instance, don’t all get paychecks from Amazon, but they all operate at “Prime” speed because Amazon demands it.

From a health and safety perspective, it’s important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes – to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs – are best achieved when all of the employers with a connection to the job are at the table.

As the amici describe very well, the labor market is evolving to exploit loopholes in the laws that were meant to keep workers safe on the job.  In industries like waste management, manufacturing, and food production, companies are contracting out some of the most dangerous jobs.  Through those contracts, the host employers seek to off-load workers’ compensation costs, training responsibilities, and safety equipment investments.  The staffing firms also frequently cut corners on training and push workers to rush their jobs in an attempt to keep costs down, profits up, and contracts renewing, leading to tragic results.  The brief from the health and safety experts provides numerous examples of these tragedies, including several workers who were crushed in heavy equipment after the host employer and staffing firm failed to provide adequate training.

The case at issue here involves a BFI trash/recycling-sorting facility in Milpitas, California.  A number of workers there are members of a union, but most of the workers on the front lines of the sorting process are hired through a staffing agency and are not part of the union.  If the NLRB were to decide that BFI and the staffing agency are joint employers and the front-line workers were to vote to join the union, those workers would have a much better opportunity to bargain for safer work and good pay.  Conversely, the hard reality is that if BFI is not considered a joint employer with the staffing agency, a vote by front-line workers to unionize creates a risk that BFI will just drop their agency and hire new workers through another one.

The amici trace the history of the NLRB’s definition of “joint employer” and show that the definition has narrowed over the last 30 to 40 years without much analysis of whether the trend goes against the stated purpose of the NLRA (to enhance workers’ ability to bargain for better working conditions), much less whether the definition is relevant in the evolving labor market.

The case is, in a sense, noteworthy for how ordinary the facts are.  The employment relationship between BFI, the staffing agency, and the workers isn’t particularly unique—plenty of employers contract out dangerous jobs.  From BFI’s and the staffing agency’s perspective, a written contract laid out fairly clear lines of responsibility over the workers’ assignments, hours, and pay and the staffing agency was the sole employer.  From a worker’s perspective, on the other hand, those lines don’t exist.  It was BFI and the staffing agency together who decided where the worker showed up for work, when the worker punched in, what lines to work, how fast to work, and how much earning potential the job provided.  NLRB’s definition of “joint employer” fails to reconcile those discordant viewpoints, so the Board is right to use this case to explore new ways to think about the NLRA and the modern workplace.

NLRB is not alone in grappling with these difficult questions of who is responsible for ensuring workers are protected.  OSHA, the Solicitor of Labor, and the Review Commission also have a number of cases in the pipeline that go to the same issues.  How these cases are resolved will determine how relevant the NLRA, the OSH Act, and other key pieces of 20^th Century legislation will be in the 21^st Century workplace.