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  • George Gonos

Comment on the NLRB’s Proposed Definition of Joint Employer



President Trump’s new appointees at the National Labor Relations Board (NLRB) are on a mission. Quietly, the new Board majority is pushing hard (along with Republican members of congress) to implement a regulation that would help employers continue to deny the union rights and hold down the wages of tens of millions of American workers for some time to come.


The regulation being championed by Trump’s NLRB is a revised (one might say rigged) definition of the term joint employer. How this term is defined and interpreted determines whether workers in certain employment arrangements (most especially temp agency workers, franchised workers, and some subcontracted workers) are able to hold accountable to law, as responsible joint employers, parent corporations that exercise a substantial share of control over their wages and working conditions. What the new NLRB members are proposing is to lock into U.S. labor policy an even narrower and more pernicious version of the joint employer standard that the NLRB had upheld, in one way or another, for several decades. Under that standard, a practice of dubious legality was allowed to spread throughout our economy wherein major corporations appropriate and exploit the labor of certain groups of American workers without recognizing them as their legal employees, thereby denying those workers the protections that our labor and employment laws afford only to employees, and stripping them of any voice or bargaining rights within the giant companies for which they provide labor inputs and create wealth.


To the supporters of the NLRB’s proposed joint employer definition (that is, the corporate employers, temporary staffing agencies and giant franchisors that ride the gravy train), this move by the new Board majority was made necessary by a decision late in the term of President Obama’s NLRB, in August, 2015. In that ruling, involving Browning Ferris Industries (BFI), the Board broadened the old joint employer test, and raised hopes that temps and franchised workers might get the chance to exercise the employee rights long denied them, in relation to the parent corporations that control their working conditions. That decision provided, for the first time, a realistic legal framework for “temps,” franchised workers, and workers in extended subcontracting chains to form or join unions where they work.


The standard set forth in the BFI decision could help temps in many workplaces to establish that the companies that hire them through commercial temp and staffing agencies, (like Nissan and many other auto manufacturers where temps work), co-determine the terms and conditions of their employment and are therefore joint employers. (Similarly, it could enable workers in many franchised outlets to prove that the giant franchisors, like McDonalds, controlling their working conditions are their joint employers.) That would legally obligate these parent employers to recognize and bargain with labor unions that include these workers, and make the big companies liable for unfair labor practices they commit, like when they terminate and replace temps who raise concerns about their low pay and often horrific working conditions. It wouldn’t be easy, but finally, with the BFI decision, “temps” and franchised workers do have the ability to bring those giant parent corporations that control their work to the bargaining table, to negotiate for better conditions and a fair share of the wealth they create.


It is to prevent this scenario, that is, to reverse the ruling in BFI, that the NLRB’s conservative members now advance a narrow and obfuscatory definition of joint employer, one that would block the extension of employee rights to these groups of workers, silence their voices and keep them from asserting economic pressure on corporate America. Characteristically, Trump’s NLRB seeks to implement the proposed policy not through that institution’s normal process (the adjudication of cases, based on facts and law), but by promulgating their definition of joint employer as a regulation, which is a purely political process.


Should the effort succeed, their revision of the joint employer rule would uphold corporate America’s current practice of treating temps and franchised workers as nobodies (or what the temp staffing industry calls “non-employees”), even when the clear facts of the employment relationship more than suffice to show a parent employer’s substantial role in controlling their work. It would allow corporations to continue evading the laws that apply to all employers, effectively leaving layers of workers without rights and the subjects of rapacious exploitation.


In short, which version of the joint employer rule prevails will help determine whether corporate employers can continue their mass escape from accountability to the nation’s laws and social norms surrounding work and employment. It will help determine also whether this giant game of pretend, in which productive workers are treated as “non-employees” by giant employers, will continue, and whether wealth generation for the rich continues to depend so heavily on the pauperization of the working poor.


George Gonos, Ph.D., Professor Emeritus

State University of New York at Potsdam

gonosgc@potsdam.edu

Currently: Adjunct Professor

Center for Labor Research & Studies

Florida International University

ggonos@fiu.edu


  • Dave DeSario

First of its kind national organization is launched to empower growing number of workers in temped-out jobs


"A NEW DAY FOR TEMP WORKERS." Sophia Zaman (left of podium), Executive Board Member of Temp Worker Justice, celebrates the passage of the Responsible Job Creation Act in Illinois, the most extensive temp worker protections in the nation and a model for other states.

Washington, DC - While monthly jobs reports like tomorrows from the U.S. Bureau of Labor Statistics have shown growth, the nonprofit Temp Worker Justice (TWJ) officially launches on February 1 to address the major job quality problem that they ignore. Namely, “insourcing,” where jobs are not shipped overseas, but instead turned into subcontracted, insecure temporary positions right here at home.


Temp Worker Justice (TWJ) is providing new tools to empower temp workers to reverse the trend of temping-out America’s workplaces. It is the first national organization giving voice to temp agency workers and specifically focusing on their issues. Its national focus has been made possible by the organizing success of dozens of local efforts and a wave of nationwide, in-depth reporting in recent years.


Temp agency employment may be good for short term corporate profits, but systematically exposes working people to a wide range of abuses. It depresses wages, strips away benefits and workers’ rights, increases the risk of serious injury, and helps corporate employers evade compliance with employment laws and regulations. A new confidential workers survey at TempWorkerJustice.org opens on February 1, providing a way for temporary workers to report anonymously on these issues and access support that previously has been difficult for them to obtain.


Taking the survey allows Temp Worker Justice to contact individual workers for direct follow up and consultation. Through a national network of TWJ partner organizations, workers may be connected with coworkers, local workers’ centers, unions, attorneys, or government agencies, depending on their needs.


In the coming months, the data collected from the TWJ worker survey will be used to produce policy recommendations and build a campaign for change, fulfilling the mission of educating temporary workers and communities. New guidelines are needed for the use of temporary workers in individual workplaces and throughout the economy. Currently only 3 states have legislation that significantly regulates the $150B/year temporary staffing industry, with Illinois leading the way.


“We fought alongside temp workers to pass the Responsible Job Creation Act in Illinois because we need more good jobs that strengthen communities, not temp jobs that permanently perpetuate poverty,” said Sophia Zaman, an Executive Board member of Temp Worker Justice and Executive Director of the Raise the Floor Alliance in Chicago. “The problems of insourced temp work are bigger than any one city or state. So wherever temp workers stand up for their rights and speak out, we will be there to support their efforts to build a fair economy for all.”


Temp Worker Justice (TWJ) is an independent national organization formed with temporary workers, leading organizers, researchers, and policymakers. TWJ is working with the National Employment Law Project (NELP) and their experienced staff to build power for working people in staffing jobs. For nearly 50 years, NELP has partnered with advocacy networks, working from the ground up to and built systematic change that improves the lives of working people.


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