Potential Opportunities for Unionizing Temp Contract Employees -- Michael Scimone

The issue of who counts as an employee is more important than ever in an economy increasingly dependent on temporary and contract labor. The NLRB issued a 3-2 decision in a case involving Browning-Ferris Industries of California that will permit unions to negotiate on behalf of fast food employees and others that rely on contract employees and employees of franchisees. The decision held that Browning-Ferris was a joint employer and was required to negotiate with the Teamsters.

The decision changes the law of joint employment. Many businesses have strongly opposed the ruling and have called on Republicans in Congress to reverse the Board’s ruling. Labor lawyer Michael Scimone of Outten & Golden LLP discusses the ruling and its long-term implications in this report.

Scimone says that the Board’s ruling is “a big step forward for workers,” especially for non-traditional employees. Scimone says that about 5.7 million workers are in contingent employment, about 4.1% of all employment in the country. Temporary work has nearly doubled from 1990 to 2008. Collective bargaining and unionizing will be much more meaningful for these workers because companies with ultimate control over wages and working conditions will have to bargain.

As to the ruling’s effect on non-union businesses, Scimone points out that these entities always have the potential to become union entities. For workers in a non-union enterprise, “the odds of being able to organize a union become much better.” Non-union subcontractors will have to take account of the possibility that union organization is possible.

Scimone says that the ruling will have an effect where there is already organizing going on because the joint employer, the prime contractor, can in some circumstances be held liable for unfair labor practices. Interfering with attempts to organize may get a company in trouble. “The process of organizing will be much fairer.”

Related news at the time, President Obama signed an executive order requiring paid sick leave for employees of federal contractors. Scimone suggests that this will not have an unfavorable effect on small businesses. Companies that do business with the federal government find a way to make it work, Scimone says. Paid sick leave is a more effective solution than allowing sick people to come to work and infect other employees.

Michael J. Scimone is Counsel at Outten & Golden LLP in New York. He represents employees in class and collective actions, focusing primarily on wage and hour litigation.

Learn more about Michael Scimone: https://www.outtengolden.com/lawyer-attorney/michael-j-scimone

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