The National Labor Relations Board (NLRB) recently made it easier for unions to force joint employers to recognize and bargain with unions. In its decision in Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the NLRB made it more likely that joint employers (now defined broadly under other NLRB precedent) will be forced to recognize the union of their co-employers' workers, and will be required to bargain directly with the union over the terms and conditions of employment it controls. Companies which use temporary staffing agencies and other such third-party agencies, as well as staffing agencies themselves, and franchisees and franchisors all should be aware of the possible consequences. For example, a national franchisor may be required to bargain with a franchisee's union regarding workplace policies and standards over which the franchisor attempts to assert control. Or, a user of temporary labor could be required to bargain with its staffing agency employees' union regarding reasons for ending the temporary work assignment, standards for converting the temporary worker to direct employment, workplace policies, assignment of work, production and evaluation standards, and the like. Or, a temporary staffing agency's employees could be organized by its customer's employee union and be required to bargain over pay, benefits and other terms and conditions of employment, merely by virtue of its employees being assigned as temporary workers at that particular unionized employer.
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