ASA Downplays Unionizing Significance of NLRB Joint Employer Decision

Thursday’s decision by the National Labor Relations Board broadening the criteria for joint employer status may not have much impact on staffing firms, says the American Staffing Association.

In a press release this morning, Stephen Dwyer, the ASA’s general counsel, 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.”

The NLRB’s decision “departed from more than 30 years of legal precedent,” said the ASA. Until yesterday, a staffing agency (or other provider) and another company would be considered joint employers only if both exercised the right to control  aspects of working conditions. The control had to be immediate and direct.

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Now, the NLRB says co-employer status can be imposed if the business merely has the contractual right to control. Actually exercising that control is no longer  required.

An analysis by Fisher & Phillips employment attorneys notes that the NLRB emphasized that the decision is limited to the unique facts in the specific case it was deciding. However, they note that “employers and temporary service providers alike should scrutinize the parameters within their written service agreements and their underlying practices for reference to right to control. This includes an analysis of pre-employment qualification and hiring standards, assignment and retention of individual temporary employees, shift schedules, workload and pace of work, and wages and benefits.”

John Zappe is the editor of and a contributing editor of John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.