August 2015

In a long-awaited and split decision, Browning-Ferris Industries of California, Inc., the National Labor Relations Board addressed whether BFI should be deemed a joint employer with the staffing agency whose employees performed various work functions for BFI and, in so doing, the Board revised its 30+-year standard for determining joint employer status. According to the three-member Democratic majority, the new standard in intended “to better effectuate the purposes of the Act in the current economic landscape.” This decision clearly alters the landscape for staffing agencies and host companies utilizing the services of staffing agencies. The two-member Republican minority castigates the new standard as a test that “confuses the definition of a joint employer and will predictably produce broad-based instability in bargaining relationships.”

The Staffing Arrangement Between BFI and Leadpoint

BFI owns and operates a recycling facility. It employs its own employees to operate forklifts and loaders on the outside portion of its facility, where the material to be recycled is delivered, moved around, and staged for processing. These 60 employees are represented by the Teamsters Union and subject to a collective bargaining agreement. Inside the recycling facility are conveyor belts on which the material to be recycled is placed for sorting and screening. A temporary staffing agency, Leadpoint, provides 240 workers to perform the sorting and screening services, as well as housekeeping services for BFI. Leadpoint also provides on-site supervision and lead workers who create the workers’ schedules and oversee the work.

The staffing arrangement between BFI and Leadpoint is typical of the type of arrangement that many companies have with the staffing agencies that they use. Under the staffing agreement, Leadpoint is responsible for the recruiting and hiring of workers, although it must ensure that the workers have the appropriate qualifications to perform BFI’s work. Leadpoint also conducts drug testing, piece-of-the-job testing, and background checks. Leadpoint is responsible for all discipline, evaluation and termination of the workers, but BFI has the authority to order the removal of any worker. Leadpoint sets the wages for its workers, although the agreement specifies that the wages cannot exceed those paid to BFI workers performing similar tasks (of which there was one worker, making $5.00 more per hour). All benefits, including holidays, PTO, and insurance are provided by Leadpoint.Continue Reading NLRB Issues New Joint Employer Standard

Contractors are still reeling from the many executive orders coming from President Obama in the last year or so, including raising the minimum wage for federal contract employees to $10.10, requiring contractors to disclose labor law violations, demanding pay transparency and the reporting of compensation, prohibiting discrimination on the basis of sexual orientation or gender