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US Labor Relations Board revises joint-employer standard

With more than 2.87m 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. 

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if:

(1) they are both employers within the meaning of the common law  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

The decision may not significantly impact the use of staffing services or staffing firm-client relations, according to Stephen Dwyer, general counsel of the American Staffing Association. He said, “Although we cannot definitively predict the long-term impact of the decision, prior board decisions that effectively made it easier for temporary workers to unionize did not demonstrably result in increased unionization of such workers, and that largely remains the case today.” Private sector union membership accounts for less than 7% of the workforce, and temporary help services workers make up 2% of the non farm workforce, according to the U.S. Bureau of Labor Statistics. “Relatively few temporary workers are assigned to clients with union workforces,” Dwyer added.”

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