Joint Employer Status Sure is Confusing – and Important!

254-time-clock-484107197-738x415tsNew Orleans    In the world of workers what should be the simplest question to answer is becoming one of the most confusing, and important. The question is: who do I work for? The answer, too often these days, is god only knows? To make matters even more complicated both the National Labor Relations Board and the Department of Labor Wage and Hour Division are trying to come up with more coherent way of solving the mystery of who is really the responsible employer fitted to modern working conditions. And, that’s the good news, though the differing definitions are still going to leave many workers lost in a quandary.

The McDonalds’s cases brought before the NLRB by the Service Employees in their Fight for $15 organizing campaign to try and hold the parent company responsible for unfair labor practices by the franchisees is going to sort this out, one way or another, in some ways for unions in coming years. Additionally, the NLRB has allowed unions to file more easily – at least in theory – for bargaining units including directly employed and subcontracted workers as joint employers. Not sure how well that is going yet? I know Local 100 United Labor Unions raised the issue in bargaining with nursing homes to see if we could automatically accrete any housekeeping or dietary units that might be subcontracted in the future, and we didn’t get as far as we could spit with the issue, but it was an interesting conversation and a warning to the employer that we now thought we had a tool to jam up the works, if they went that direction, which many homes had gone in the past.

The DOL is going several different ways in trying to straighten out a path to the future, but none of this reads easily. One digest I read summarized it this way:

“Horizontal joint employment,” the guidance says, occurs when an employee works for two or more employers that are separate only in a technical sense. “Vertical joint employment” occurs when one employer uses an intermediary, like a staffing agency, to employ workers with whom it maintains what amounts to an employer relationship.

I hope that’s clear!

With the NLRB the issue revolves around who controls the workplace. The DOL seems to be looking at how high the walls are between workers in the same workplace. If it’s a captive entity with only a thin layer of Sheetrock between one and the other, they are joint. In some cases it also seems the test is likely to move towards who has the deepest pockets as well. Since we are talking about wages and hours, I would bet who really controls the time-clock on the job also could have a heavier burden on any pay violation in this area.

In these days and times, we pretty much have to wait until the lawyers and courts get through with finding the holes and trying to plug them up. The good news for workers is bound to be that they will be better for the struggle to clarify the mess, but it’s hard not to get a sinking feeling for unions and for many workers we are a long way from fixing this problem of “button, button, whose got the button” when it comes to grabbing an employer and holding the boss accountable for fair wages for a day’s labor.

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