Posts Tagged ‘labor and employment’

The National Labor Relations Board (“NLRB”) has changed the way that it will determine whether a mixed group made up of employees from a supplier employer and employees from a host employer may constitute an appropriate bargaining unit. In its July 11th Miller & Anderson, Inc. decision, the Board determined that the consent of both employers is no longer necessary. Instead, the Board will apply its standard community of interest test to determine if such a bargaining unit is appropriate.

In other words, temps employed by a personnel supplier company who work for a business and employees working only for that business will be able to vote on representation together if the two groups perform a similar kind work under similar conditions and have common supervision. Employers hiring temps should be aware that if temps make up a high enough percentage of the bargaining unit, the unit could unionize without any support from the permanent employees working directly for the host employer.

According to the Board, each employer will have an obligation to bargain only over the employees with whom it has an employment relationship and only in regard to the terms and conditions that the business has the authority to control. This means that the host business will have an obligation to bargain concerning the terms and conditions of employment for both the temps and its own regular employees in the bargaining unit, while the temp agency will only have an obligation to bargain with its temps, not the regular employees working alongside them. The business and the temp agency would then need to bargain with employees over the terms and conditions of employment that each employer could control.

This ruling overturns a 2004 decision by the Bush Board, known as Oakwood, and returns to the 2000 decision by the Clinton Board in M.B. Sturgis, which Oakwood had overturned. In Sturgis, the Board had reversed almost thirty years of clear precedent requiring mutual consent of both employers before employees of separate companies could be combined into a single bargaining unit.

The Miller & Anderson decision compounds the existing hazards of outsourcing labor to a temp agency created by the Board’s ruling in Browning-Ferris. In that case, the Board found that the presence of “indirect control” is enough to determine the existence of a joint employer relationship, a significant change from the previous requirement that an employer had to directly exercise its power over employees to establish a joint relationship. As Board member Philip Miscimarra noted in his Miller & Anderson dissent, “the majority’s expansion of Browning-Ferris here will only make it more difficult for parties to anticipate whether, when or where this new type of multi-employer/non-employer bargaining will be required by the Board, nor can anyone reasonably predict what it will mean in practice.” As a final note, given the Board’s predilection for reversing itself, both Browning Ferris and Miller & Anderson will have a short shelf life if the Board’s composition changes as a result of the November elections.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Supervisors must have Authority to Hire and Fire

On June 24, 2013, the U.S. Supreme Court held in Vance v. Ball State University that when analyzing harassment claims, to determine whether the employer is vicariously liable, a “supervisor” is an individual who has the authority to take tangible employment actions against others.  Individuals who do not has this authority should be treated as “co-workers.”

As background, in the 1998 Faragher and Ellerth decisions regarding employer liability for sexual harassment, the Supreme Court held that an employer can be held liable for harassment by coworkers only if the employer did not take sufficient steps to prevent and correct harassment, but the employer is strictly liable for the harassment by a supervisor if it resulted in a tangible employment action (such as discharge or demotion).  In Vance, the Supreme Court clarified that in order the employer to be strictly liable, a supervisor must be a person who has the authority to hire, fire, demote, promote, transfer, or discipline, or otherwise take tangible adverse employment actions against employees.

The Vance opinion will allow employers to demonstrate in more cases that they have taken appropriate measures to prevent and correct harassment because fewer individuals will meet the definition of supervisor.  In addition, because whether an individual is deemed a supervisor is more clear, employees (probably on the advice of counsel) may be more likely to try to resolve matters internally.  However, employers should be aware that even if higher-level, non-supervisory employees such as shift leads and foremen do not have the authority to take tangible employment action, they may still be held to a higher standard than regular co-workers, so employers should be sure they are properly trained on harassment.

In addition, given the importance of the term supervisor under this decision, employers should make sure their job descriptions accurately reflect the authority given to each position.  Employers should also review policies regarding decision-making procedures and complaint procedures to ensure that the authority given to various positions is accurate and consistent with the Company’s intentions.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Anti-Harassment Policy, Labor & Employment | No Comments »