Joint Employer Decision by NLRB Should Not Impact AMCs

What the NLRB said in this case is that even though a company does not directly employ workers, if that company has the right to control the workers it may nevertheless be considered a "joint employer" for collective bargaining purposes. This is true, according to the NLRB, even though the business does not actually exercise its right to control, and this is the alarming change from current law that has caused such an uproar – the rule for decades has been that a business must both possess and exercise a right to control workers in order to be considered a joint employer.

This case involved a staffing agency – Leadpoint – that provided workers to Browning Ferris Industries (BFI) to work at a BFI facility, using BFI equipment, and where BFI supervisors and managers also worked. Under the arrangement, BFI had the right, among other things to:

• Reject any Leadpoint employee at any time and for any reason;
• Dictate the qualifications of Leadpoint employees;
• Require that Leadpoint employees meet BFI’s own standard selection procedures and tests;
• Require Leadpoint employees to pass a drug test; 
• Set a maximum wage "ceiling" above which Leadpoint could not pay its employees;
• Set the working hours for Leadpoint employees;
• Dictate the number of Leadpoint employees assigned to each task for BFI, the timing of shifts, and when overtime would be permitted;
• Set productivity standards for Leadpoint employees;
• Exercise "near-constant oversight of [Leadpoint] employees’ work performance";
• Require that Leadpoint employees comply with BFI safety policies; and
• Provide training, orientation, and counseling directly to Leadpoint employees. 

Certainly most AMC clients have close involvement with AMC personnel, including assigning tasks, particularly with respect to the Executive Director/EVP position, and a management contract may give the AMC the right to have AMC personnel reassigned if the client is not pleased with their performance. But the circumstances present in the scenario addressed by the NLRB involve control far beyond what any AMC client association would ever have with respect to AMC employees. There is no reason to believe that this case would support the notion that an AMC client could be a "joint employer" of AMC staff. 

Hugh Webster
Webster, Chamberlain & Bean
Washington, DC 20006
 
Each situation and contract is different.  AMCI strongly recommends members consult your own legal counsel should you have questions or concerns concerning this ruling. - AMCI HQ.