NLRBA lot of people are engaged in nonstandard employment today.  Whether you call it contingent work, the gig economy, the “sharing” economy or outsourcing, they are all models in which the workers who perform labor do not have a recognized employer-employee relationship with the business or entity for whom they are performing labor.  These models have become more prevalent over the last thirty years or so.  The use of temporary staffing companies to supply labor, or “temps,” is just one example.  Temps used to be mostly used for white-collar secretarial work, but they have become increasingly common for blue-collar work such as manufacturing jobs, construction and janitorial work.

Our labor and employment laws have not kept up with this changing reality of work.  But in a 3-2 decision issued last week, the National Labor Relations Board has revised its joint employment standard to reflect the reality of these new employment relationships.  In a statement released last week by the NLRB, they explained:

“The revised standard is designed ‘to better effectuate the purposes of the Act in the current economic landscape.’  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”

The decision addressed the question of who were the employers of temporary staffing company workers and concluded that both the staffing company and the staffing company’s client where the workers were placed had sufficient control over the employees to be considered joint employers.  This is a victory for the workers and union involved because it means that the workers have a protected right to bargain with the larger company that controls the terms of their employment and not just with the staffing company.

It is also a victory for workers more broadly.  The growth of contingent employment has reduced the ability of workers to collectively bargain because layers of intermediaries have separated workers from the company that actually has power over their working conditions.  This decision — if it is not overturned when it is inevitably appealed– removes one incentive for employers to use labor intermediaries in order to avoid liability and restores a little bit of power to the workers.


As noted in board’s press release today:

The consolidated complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act.  The Office of the General Counsel alleges that Walmart violated the Act when:

  • During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests.
  • At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, Walmart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
  • At stores in California, Florida, Missouri and Texas, Walmart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

More to follow.