NLRB Finds Joint Employer Relationship Partly Because Companies had Worked Together Before thus They will do so Again

Retro Environmental Inc., a construction company, was a joint employer with staffing agency Green JobWorks, LLC regarding a group of full- and part-time laborers. The NLRB found that the construction company primarily controlled the day-to-day work of the temporary workers, while the temporary staffing agency handled matters such as hiring and assigning employees to job sites, completing pre-employment drug screens, and conducting background checks. Green JobWorks also controlled the rate of pay and payroll procedures for the temporary workers, as well as discipline and termination, although Retro could request a replacement when unsatisfied with a particular worker’s performance.

During the summer of 2015, the staffing agency provided workers to the construction company for two demolition and asbestos abatement projects scheduled to conclude in July. In June 2015 the NLRB’s Regional Director dismissed the petition because the projects were close to being completed and there was not enough evidence to suggest the companies would continue working together. In a 2-1 decision reversing the Regional Director in part because the staffing agency had supplied workers to the construction company on several projects before, so it was foreseeable that it would do so again. So according to the NLRB, just because a company contracts with another before means that it will do so again and thus those separate companies are joint employers?

Both staffing agency employers and employers who contract with staffing agencies should be mindful of ongoing attempts by unions to organize a single group of workers in this context, and they should contact qualified counsel regarding strategies for handling possible joint employment scenarios, including the drafting and implementation of service agreements and the areas of control that an entity may ant to exclusively maintain or forego.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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