Home / General / NLRB Pushes Back Against Permatemps

NLRB Pushes Back Against Permatemps

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In their myriad ways to avoid not only unions but also responsibility for their own employees, employers have come up with any number of ways to control workers without having any legal obligation to them. One of the most effective ways is to use temp agencies for long-term workers who labor on the shop floor next to actual employees, doing the same work with lower wages and fewer if any benefits. The Japanese auto industry’s investment in American factories for instance has relied heavily on this sort of arrangement. How can a factory unionize when the workers are technically employees of different companies? This is of course half the point of it, the other half being lowering employee compensation. Before this week, the rule was that the temp company would have to grant permission for their employees to be included in such a bargaining unit, which is of course laughable that they would grant. But by a 3-1 vote, the NLRB overturned that rule this week.

The National Labor Relations Board is reaffirming its view that labor law must now address the brave new world of the fissured workplace—where workers are often separated from their actual employer by layers of subcontractors and staffing agencies. On Monday, the board announced a decision on the case Miller & Anderson, ruling that unions that want to represent bargaining units including direct employees as well as “permatemps,” contract workers, and other indirect workers that share a “community of interest” are no longer required to get permission from the parent company.

The old standard, established by George W. Bush’s NLRB in 2004, which required unions to gain such parent-employer consent, allowed companies to use staffing agencies and subcontractors as a barrier to organizing drives. Under the new ruling, a nurses union, for example, can now more readily expand bargaining units at a hospital to include registered nurses who are directly employed by the hospital, as well as nurses who work for staffing agencies hired by the hospital.

This is absolutely huge and another enormous advance in labor law by Tom Perez’s Department of Labor.

In an increasingly fractured world of labor relations, it’s hard to understate how big of a deal this is for easing union organizing efforts. And coming less than a year after its Browning Ferris ruling that established a bold new standard for defining when parent companies are joint employers of subcontracted workers, the Miller & Anderson decision is yet another important step that increases employer accountability to their workers by expanding the responsibilities of joint employers.

Not only does the decision mark an emerging new jurisprudence on labor relations, it also serves to burnish President Obama’s second-term record on labor and worker rights, which includes a rash of bold new policies enacted through executive power.

You can read the decision in this PDF

This is why I have zero patience with anyone voting for Jill Stein. While there’s no guarantee that Hillary Clinton will have as strong a DOL as Obama has since naming Perez to his cabinet, there’s also no question that her NLRB appointees will build on these sorts of decisions to improve conditions for workers. I simply assume that most people who refuse to “compromise their values” by voting for Hillary basically don’t actually care about working class people.

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  • Karen24

    Good article.

    And now a bit from Chicken Eeyore: Four polls now show Trump LEADING in Floridan and Pennsylvania. How does that happen?

    • Gwen

      I suspect that over the next 10 days or so we will see the best polling that Trump will ever get. He’ll make a VP choice in the next few days and then go into the GOP convention. Unless the GOP literally sets themselves on fire, they should get some modest polling boost.

      If Hillary is still leading the poll-of-polls before the Democratic National Convention starts on 7/25, then I think it’s fair to say that she will win the election.

      As soon as the conventions are over, we’ll have sort of a halo period because of the Olympics, and then non-politics-nerd people will really start paying attention. And I frankly doubt that Trump will weather actual public scrutiny well.

      • Derelict

        I know I would have a more positive image of the GOP if they literally set themselves on fire.

        • Burning_River

          There is indeed something to be said for giving the people what they really want.

        • cpinva

          “I know I would have a more positive image of the GOP if they literally set themselves on fire.”

          they don’t even have to do it themselves, i’ll happily light that match for them. for a small fee of course, upfront.

    • Matt McIrvin

      Easy. Two of them are Republican partisan polling outfits we’ve never seen before in this cycle, and the other two are firms that for whatever reason seem to have a mild pro-Trump house effect in their demographic sampling (Gravis and Quinnipiac).

      Combine that with, probably, a small real shift toward Trump caused by the Comey email statement, followed by two high-profile racially charged killings by police and an equally racially charged massacre of police, turning the heat way up on racial conflict. Scared, angry white people are going to turn to Trump when that happens.

      I agree with Gwen; I actually wouldn’t be surprised to see Trump with a modest national lead after the Republican convention unless the disaster is extreme (and if he doesn’t have one, he probably can’t make up the deficit later).

      • Gwen

        Right.

        Another thing that occurs to me, is that in a lot of polls it is close (or Trump is leading) not because Trump is doing well, but because Hillary is doing badly.

        For example, McClatchy has a national poll out this morning 42-39.

        I think you’ll see a lot of polls with Trump around 40. He seems to have a floor around 35 and a ceiling around 45.

        Hillary’s window is a lot larger; her ceiling seems to be about 55 and her floor seems to be about 40.

        I’d *much* prefer to be seeing “tight” (or Trump-leading) polls because Hillary was hitting her floor, rather than Trump expanding his ceiling.

        • Matt McIrvin

          I’m hoping that a lot of the undecideds we’ve been seeing are people who have misgivings about Hillary Clinton from the left, and weren’t willing to say they supported her while the primary campaign seemed at least emotionally unresolved.

          We of course haven’t seen any polls from after Sanders endorsed Clinton, but I wouldn’t expect any effect of that to be large and immediate–the event says good things about how the Democratic Convention might go, though, and the upside Clinton potentially has as the party unites behind her.

        • Matt McIrvin

          One way you could interpret events is that Trump tends to gain when big news stories push his personal behavior to the background, and highlight Clinton’s supposed misdeeds or a scary thing that happened or whatever. He falls (in general-election polling) when the stories are about him.

          Which implies that how the convention is stage-managed probably matters. If the convention looks like an extended screaming Trump rally, it could actually hurt him. It helps him if they have a more conventional setup, keep him in the background aside from a big acceptance speech and have dignified surrogates talking most of the time, hammering on Hillary Clinton. But they’ve got a shortage of dignified surrogates.

          • brendalu

            That…does not sound like what they’re gearing up for.

            In addition, the platform process looks to be doubling down on a lot of far right priorities, and that won’t be reflected in the polls yet.

            • Matt McIrvin

              Does anyone but political junkies and extreme partisans ever pay any attention to party platforms?

            • jmauro

              Much like the Democratic platform it’s completely meaningless.

              Platforms are fodder for activists to keep them occupied so they don’t muck up other things.

    • elm

      Dana Houle has been all over the Quinnipiac polls on his twitter account and I think he’s largely right that they’re garbage. They’re samples are incredibly skewed and their methodology sketchy.

      • kped

        All 4 of the polls are garbage for the same reasons. Over sampling white people, unrealistic black %’s, etc.

        Hell, 538 doesn’t even list 3 of them. Sersiously, what is “OnMessage”? JMC Analytics? They have Trump winning Hispanics in Florida by 13%. Obama won Florida Hispanics by 60% to 39%.

        So…Obama won them by 21%, and Donald Trump has called them rapists and murderers…and he wins them by 13%. What the holy fuck is that?

        Awful awful polls.

        • The Temporary Name

          So…Obama won them by 21%, and Donald Trump has called them rapists and murderers…and he wins them by 13%. What the holy fuck is that?

          Um, wow.

        • so-in-so

          Sam Wang seems to feel the movement is real, but may not last (in his post on Facism).

          http://election.princeton.edu/

          • Matt McIrvin

            It reads to me as if he’s suspending judgment. This could be a combination of a real movement, and the meaningless grouping of four polls with a pro-Trump lean getting released at the same time.

            There’s a philosophical difference here between Sam Wang’s approach and Nate Silver’s. Silver tries to rate each poll by the polling firm’s track record, and also to produce an estimate of each poll’s systematic bias that he subtracts out from its numbers. And then he does a weighted mean over a longer period of time that accounts for these things, so that older polls he trusts more can have more weight than more recent ones he doesn’t. So Florida is still light blue in Silver’s model.

            Wang worries that all this effort is mostly just adding noise and uncertainty while not making the central predictions any more accurate; he favors simple measures. So he takes the most recent few polls, but to keep weird outliers and tendentious polls from pulling the sample too far in any direction, he uses medians rather than means. In this case, though, the four most recent polls are all saying basically the same thing, so there’s no real difference there, and Florida flipped in his model.

            I think time will tell.

        • FMguru

          One of my predictions from 2012 was that, given the importance of polling aggregators (like 538) in driving the narrative, we would start seeing lots of fly-by-night polling firms popping up spamming nonsense numbers in order to bend the narrative one way or the other.

          Looks like it’s coming to pass.

          • tsam

            That’s not exactly a new thing, is it? Seems like there’s always “POLLS SAY ___ WILL WIN” and it turns out to be one poll that doesn’t seem to feel any need to share methodology with the readers. Could a deliberate thing, or just somebody who’s bad at the job.

  • Gwen

    “I believe in democracy, pluralism, free speech and human rights. Which means that my preferences should all become law, regardless of what anyone else thinks, without compromise.”

    • Brad Nailer

      It’s surprising how easy that is to imagine when you think it in your Trump Voice.

      • Gwen

        It’s funny how the Green Party sounds like Trump’s ventriloquist dummy…

  • NBarnes

    Is there anything sweeter than the tears of union-busters? I suspect not.

  • redzuny

    The NLRB is an independent agency, and not under DOL. Perez had no input. Common mistake.

    • The Dark God of Time

      Did you miss the part about “NLRB appointees”?

      • Srsly Dad Y

        another enormous advance in labor law by Tom Perez’s Department of Labor

        as strong a DOL as Obama has

        This is misleadingly worded tbf.

      • Rich C

        Srsly Dad Y and redzuny are correct, the DoL doesn’t have any role whatsoever in determining what cases the NLRB hears or how they decide, so Tom Perez’ appointment isn’t relevant to this particular outcome, which I’m pretty sure Eric and the dark god of time know. But Perez is awesome, and this decision is great, and its easy to slip up and attribute a great decision to an awesome guy when the job titles all include “Labor” which is what I suspect happened here.

  • Scotius

    The old standard, established by George W. Bush’s NLRB in 2004, which required unions to gain such parent-employer consent, allowed companies to use staffing agencies and subcontractors as a barrier to organizing drives.

    This kind of thing is the reason I am never going to stop hating George W Bush. His administration never missed an opportunity to side with the wealthy and powerful against the poor and powerless.

  • Derelict

    In my little town, there are a couple of small manufacturing facilities left. I know that one of them relies very heavily on the perma-temp model. The temp agency gets paid $15/hr for each employee, and each employee gets paid $9 to $11/hr. No employee works more than 6 months before being laid off. Most get re-hired 6 months later, thus setting up a revolving door of permanently under-paid no-benefit, no-future workers.

    And the factory in question is constantly whining about the lack of good, skilled, dedicated employees.

    • ijkcomputer

      How can a factory unionize when the workers are technically employees of different companies? This is of course half the point of it, the other half being lowering employee compensation.

      I think anti-unionization, and other forms of control (being able to easily segregate who at the company gets benefits, keeping workers aware that they can be fired at any time with no process whatsoever, getting the regular employees to think they’re lucky just to have a real job, deniability, and so forth) makes up more like 80% of the motive. The temp agency often adds 50-100% to the wage costs of the worker, so the temps really aren’t so cheap in direct terms.

    • upstate_cyclist

      Excuse the stupendously naive question: How exactly does paying a contractor a 4-6 dollar overhead make any sense? Why not just hire the person directly for $12? Seems like a waste of money.

      • NewishLawyer

        You save on benefits like insurance and PTO.

        The solution here is to give people sick time based on hours worked but that can be hard to accumulate.

    • tsam

      constantly whining about the lack of good, skilled, dedicated employees.

      Those words they use to describe what type of worker they’re lacking are stupidly inaccurate. They want highly skilled people who don’t want to make a good living or have job security or benefits, and are fine with unreciprocated loyalty. I used to work for somebody like that. “THERE’S NO LOYALTY ANYMORE!”, he was fond of saying.

      • upstate_cyclist

        It must be a hard act to continually feign surprise when workers have no loyalty to their current employer. The boss’s usual response to acts of disloyalty is “well why don’t you just leave” as if getting a job was as easy as snapping ones fingers. Also that worker dissatisfaction without wanting to jump ship made no sense whatsoever.

        • tsam

          I don’t believe this guy was feigning it. In reference to a warehouse worker, (checks in freight, puts it on the shelf, assembles orders for shipping, etc), he INSISTED that he’d spent enormous amounts of money training these guys to read a part number and place the item on the matching shelf space, or read a pick ticket and match the part numbers and assemble the order. Not exactly super scientific work, but his words “This is like a college education, every number and letter means something”.

          • so-in-so

            Let me guess – self made man, never went to college?

            • tsam

              No…the business was started by his grandfather. He grew up knowing it would be his. He did go to college, and then returned to “work his way up the ladder in the company” in a matter of weeks.

              I will say this, however. The guy jumped on the internet commerce thing in 1993 and turned that into a massive success. He did grow the business quite a bit from his father and grandfather’s years. He was a very mixed bag. He could be a raging asshole, and a pretty decent guy. The worst part of that was the unpredictability. He was very complicated.

              • upstate_cyclist

                Sounds like a serial abuser, in this case, to his employees. Charming, clever, and an absolute asshole when those below him deviated from the program. Not surprising that this individual had a hard time imagining workers as independent agents with wants & nerds rather than pieces of human capital.

                • upstate_cyclist

                  Nerds -> Needs
                  Sigh…

              • so-in-so

                Interesting that someone who actually attended college has such a weird idea about what is involved. I suppose it is just that the idea was self-serving.

        • Origami Isopod

          It must be a hard act to continually feign surprise when workers have no loyalty to their current employer.

          Lack of empathy, self-awareness, or perspective. That’s pretty much all it takes.

  • upstate_cyclist

    The methods of lean supply chain management have over the past 30 years migrated out of manufacturing proper and into all other portions of the business. A sizable portion of software development is done with external contractors, often times with individuals from multiple companies working under the same roof on related projects. Am curious how well this ruling moves off the shop floor as well.

  • NewishLawyer

    Question:

    How many companies are going to try and get around this by giving people contracts that are X months on and then Y time off?

    That seems to happen to white-collar permatemps a lot in the Bay Area. Companies establish a cut off and then says that the temp can’t work for the company for a few months. I think this is done to get around SF or state rules on making long term temps employees.

    • delazeur

      I know Microsoft does this with some of their Seattle staff. I am not sure why the practice appears to be tied to the industry more than the jurisdiction.

      • The Temporary Name

        That industry is clannish and knows how to network and collude.

        • so-in-so

          Microsoft was an original defendant in a lawsuit by long-term ‘contractors’ which found they were, in fact, employees and had to be given the benefits of that status. Contracting in tech changed rather suddenly at that point.

  • HenryW

    In response to upstate-cyclist: Among other things, (1) it creates a wall between groups of workers, making it that much harder (and, before yesterday’s decision, effectively impossible) for workers on both sides of that wall to organize, (2) it creates a readymade group of strikebreakers in the event that the regular employees organize, (3) it allows the business to shed workers in a bloodless manner–instead of firing them, it merely terminates the relationship with the contractor or relies on the contractor to terminate them, (4) to the extent that the contractor is rotating employees in and out of the workplace on a daily or weekly basis so that none of its employees have any lasting connection to the workforce, which may be a practical business model for some unskilled jobs in some workplaces, it produces an even more atomized workforce, and (5) it may allow the employer in some cases to indulge in the fiction that these individuals are independent contractors rather than employees.

    • upstate_cyclist

      @HenryW: that’s more or less the speil I have given new hires who are fresh out of college when they ask rightly “wouldn’t it be more efficient if we all worked for the same company and in the same location?” So much asinine lag time to get software or get projects approved by four levels of management and two legal teams. I just can’t see it as cheaper ala “we do this for labor costs.” At least in small sphere I operate in. Though I am starting to see work migrate to Kentucky from Connecticut but within the same company for obvious reasons.

    • Origami Isopod

      it may allow the employer in some cases to indulge in the fiction that these individuals are independent contractors rather than employees.

      It’s the Entrepreneurial Age! We’re all the CEOs of our own careers!! /happy-clappy bullshit

  • ggrzw72

    What do Perez and the DOL have to do with this?

  • Kazanir

    I simply assume that most people who refuse to “compromise their values” by voting for Hillary basically don’t actually care about working class people.

    Do we really have to do this with such regularity?

    I know a lot of these people personally. I follow even more of them on various political outlets. I can assure you that, in spite of our massive strategic disagreements about voting, they do actually care. No one was ever persuaded of anything by someone telling them, “You don’t actually care about the things you claim to.”

    Your argument is essentially denouncing people somewhat to your left as outright ideological enemies and dishonest to boot. That seems — at best — tactically counterproductive unless you are absolutely sure that you’re correct that they are dishonest concern trolls and nobody should ever listen to them.

    • How are these people to my left?

      • so-in-so

        Because they say so, of course! Silly question.

    • tsam

      Refusing to vote for Hillary Clinton because of whatever reasons (now that she’s the nominee) doesn’t make someone to anyone’s left.

      There are a disturbing number of uninformed people who honestly believe that Trump (or any other current Republican for that matter) wouldn’t be worse than a Clinton administration, which is absolutely fucking nuts.

    • upstate_cyclist

      “It became necessary to destroy the village in order to save it” is NOT the strategy of someone who actually cares about the people in the village.

    • Origami Isopod

      Do we really have to do this with such regularity?

      Apparently we do.

      Also, “caring” doesn’t do jack shit unless you back it up with effective action.

      • so-in-so

        “I love my people – PULL!”

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