The Anticipated Trump Effect on Labor Law in the Staffing Industry

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will result in the staffing industry.

Miller & Anderson amplified 2015’s Browning Ferris ruling, expanding the ability of “joint employees,” such as those provided to a user-employer by a staffing company, to organize. Now, solely and jointly employed employees can band together in the same unit without consent from either the user-employer or the provider-employer, if the “community of interest” standard is met. In a combined unit, the user-employer is required to bargain over all terms and conditions of employment for all employees it solely employs and for jointly employed employees that it possesses the power to control.

Because of this decision, I expect a lot of organizing to occur in the staffing industry. Staffing companies should step up their employee satisfaction and union avoidance programs right now. User-employers must evaluate both their own and their staffing companies’ vulnerability to union organizing. All employers, of course, should be looking at scenarios, including worst-case scenarios, in the event of organizing, and create plans for combating an organizing drive.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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