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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Grinding out a Hollow Victory under the NLRB for Garbage Workers

8965564-largeLittle Rock   For more than twenty years, Local 100 has represented “hoppers” in New Orleans as well as other cities in south Louisiana and Texas. Hoppers, gunslingers, or whatever they might be called are the laborers at the rear end of garbage trucks, handling the business end of the enterprise, making sure the content of the filled cans gets into the “hopper” which is the large cylinder that rotates and compacts the garbage on the route. Even as the process has become more mechanical with lifting arms and special cans, many an 80-gallon piece of plastic is still heaved into the hopper to keep the routes speeding along from house to house. This is hard, sweaty, and often dangerous work.

These workers for decades have been subcontracted by municipally privatized sanitation contractors like Waste Management or Browning-Ferris or smaller companies to temporary employment agencies. Some unions and organizers along with the general public wrongly assume these workers are company employees when and if they notice them at all and believe that if they are temporary or casual, they are not covered by the National Labor Relations Act, but of course they are. When we won these elections in the 1990s, we bargained the workers up from minimum wage and archaic employment practices like “Chinese overtime,” still common in the industry for such workers. It was front page news in the Wall Street Journal at the time.

After Katrina hit New Orleans 10 years ago, garbage service was provided by FEMA for a while, meaning that all the workers and contractors disappeared. When they came back under the now disgraced and jailed Mayor Ray Nagin, there were new companies and new contractors. We were able to establish that one new contractor, Milton Berry, was a successor, and we attempted to bargain a contract with them. There was a problem though and a big one. Berry had unilaterally rolled back wages, so we filed charges to recover the losses while trying to bring this outfit up to the 21st century and modern worker protections. Easier said than done, because all Berry really had going for himself was a knack for cutting corners and some lawyers who didn’t care about anything but getting their hourly rate. We got 10j injunctions. We endured appeals to the 5th Circuit Court of Appeals. Anything to wind down the clock. Berry lost the contract for the hoppers, but the lawyers kept on.

The final order has now come out more than seven (7) years after we filed the initial charges. The NLRB ordered Berry and his wife, as owners of M & B Services to post fifteen (15) notices of their illegal activity, but no hoppers will ever see these notices because Berry no longer has a place of business in New Orleans. He has been ordered to pay $223,781.00 in back pay and $42,292 in interest through September 22nd, a figure that will keep rising until payment, from the total bill of $266,000 now. The checks supposedly have to be received by the NLRB in their offices by no later than the middle of October. No question, if you read the order, after all of these years Local 100 and the workers have a victory in hand.

Rosa Hines, Local 100’s New Orleans office director, who has handled this case throughout this period should frame the order and put it near her desk somewhere in the office. That way we and the workers will have something to remember from this struggle, because after all of this time it is unclear that any of them will ever see a dime.

The NLRB order reads this way in finding culpability:

M&B Services, Inc; Berry Service, Inc. (Berry I); Berry Services, Inc. (Berry II); Berry Transportation, LLC; Milton Berry, an Individual Charged with Personal Liability; Carolyn Berry, an Individual Charged with Personal Liability.

Milton Berry’s business address is now in a New Orleans suburb. Carolyn Berry, his wife, has a business address in Magnolia, Mississippi. Their businesses are small potatoes, but having been led down a bad road by their lawyers’ exploitation of the deadening legalistic bureaucracy of the NLRB and the playground it allows scofflaws, they are now personally on the hook for $260,000.

The next lawyer they hire will probably be a bankruptcy specialist, not a labor law exploiter. The Berry’s will have a sad tale to tell at family dinners about the evil of unions. Meanwhile the union and the workers seven years later will have something they can look at in a frame with the slim chance of ever seeing a dime of back pay and the ongoing struggle of still trying to work on wages still lower than they enjoyed a decade ago.

Maybe there is hope in the new joint employer decision of the NLRB that allow justice to be won from the primary contractor, but that’s a fight next time. For now there’s no celebration over a hard won victory this time.

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