Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Contractors’

Should Workers Be Punished for Being Employed By Subcontractors? This Legal Battle Will Decide.

Thursday, January 10th, 2019

Over the last few decades, a growing number of American workers have effectively lost many of their labor rights because of the way their bosses structure the employment relationship. These workers are contractors who are hired by one company but work for another: the Hyatt Hotel housekeepers who actually work for Hospitality Staffing Solutions, the Microsoft tech workers who actually work for a temp agency called Lionbridge Technologies, and the Amazon warehouse workers who actually work for Integrity Staffing Solutions. These workers often perform the same work at the same place as other workers, frequently on a permanent basis.

But because their employers have entered into complicated contracts with each other, these workers have been unable to exercise their labor rights. If the workers can only bargain with the staffing company and not the lead company where they actually work, they are negotiating with the party that often has no power to change the terms of their employment. For that reason, workers have fought for a more inclusive definition under the National Labor Relations Act of what constitutes an employer—and when two employers are joint employers.

Recently, the Washington, D.C. Circuit Court of Appeals issued a major ruling that was a win for workers, and now this issue seems destined for the Supreme Court. As the legal battle heats up, workers everywhere should be paying close attention, since their livelihoods—or unions—could be affected.

Contracting expands as workers’ rights shrink

Under a traditional employment relationship, workers have one employer who has the power to hire, fire, pay, supervise and direct them. If such workers form a union, the law requires the employer to recognize the union and bargain in good faith. (Employers routinely violate the law and suppress workers’ labor rights, but workers at least have a theoretical path to collective bargaining.) Workers also have the right to picket and engage in other disruptive activities when they have a labor dispute with that employer.

However, there is a growing group of blue-collar, white-collar and service workers who find themselves working for two employers, either through contractors or temporary help firms. “In 1960 most hotel employees worked for the brand that appeared over the hotel entrance,” David Weil, former adminstrator for the Department of Labor Wage and Hour, explains in his 2014 book, The Fissured Workplace. “Today, more than 80 percent of staff are employed by hotel franchisees and supervised by separate management companies that bear no relation to the brand name of the property where they work.”

For those who work in a fissured workplace, organizing a union can be especially tough. The contracting firms have little power to raise wages or change working conditions, unless the company that controls the worksite agrees. Therefore, workers need both employers at the bargaining table.

Starting in 1984, the National Labor Relations Board (NLRB) began imposing difficult requirements to show that two employers are joint employers. By 2002, the NLRB was requiring that it be shown that the putative joint employer exercises direct and immediate control over employment matters. This meant that even when a company hired workers through a staffing agency to work at its site, chose the number of workers, gave specific work assignments and directions, and exercised supervision, it was not found to be a joint employer. Workers could, of course, form a union to negotiate with the staffing agencies, but those agencies usually have little room to maneuver alone.

Obama’s labor board

Recognizing this growing problem, in 2015 the NLRB changed the test to determine when two employers constitute a joint employer in its landmark Browning-Ferris Industries decision. No longer would workers have to show that both employers exercise direct control over them. Instead the NLRB recognized how power actually functions in the workplace and ruled that it would only require a showing that an employer had indirect or reserved control over the workers.

In its ruling, the NLRB recognized that for 30 years its approach to continuously adding requirements was moving in exactly the opposite direction from what was required: “As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded.” And indeed, according to data from the Bureau of Labor Statistics’ most recent Contingent Worker Survey, there are approximately 2.3 million workers who work for contractors or temporary help agencies, and this figure captures only a portion of those that one could reasonably find have joint employers.

The NLRB’s new Browning-Ferris test looked at whether two employers actually share or codetermine employment matters by also considering reserved or indirect control. Therefore, an employer could no longer avoid its liabilities and obligations by structuring its power in an indirect fashion. James Hoffa, the president of the Teamsters, the union that represented Browning-Ferris workers, said at the time, “This decision will make a tremendous difference for workers’ rights on the job. Employers will no longer be able to shift responsibility for their workers and hide behind loopholes to prevent workers from organizing or engaging in collective bargaining.”

Similarly, employer-side attorneys recognized the scope of the decision. In their dissent in Browning-Ferris, NLRB Members Philip Miscimarra and Harry Johnson wrote that the decision was “the most sweeping of recent major decisions. Attorney Marshal B. Babson who represented the U.S. Chamber of Commerce in its opposition to this case, said at the time, “The decision today could be one of the more significant by the NLRB in the last 35 years. Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

The right strikes back

Reaction among corporate groups and Republicans was immediate, severe and comprehensive. Within two weeks, both House and Senate Republicans had introduced the Protecting Local Business Opportunity Act, which would amend the National Labor Relations Act to define joint employers as those who “directly, actually and immediately” exercise control. In 2017, the House passed its version of the bill in a vote that fell largely along party lines.

Once the NLRB came under Republican control and was presented with a case that touched upon the joint employer question, the NLRB, in the Hy-Brand case, overruled Browning-Ferris. This decision was so potentially damaging to workers that former NLRB Member and current executive director of the Labor and Worklife Program at Harvard Law School, Sharon Block, wrote that the decision constituted part of a “December Massacre.” 

But then, on February 9, 2018, the NLRB Inspector General issued a memorandum that determined that there was a “serious and flagrant problem and/or deficiency” in the NLRB’s deliberations surrounding the Hy-Brand case. Specifically, the memorandum found that Hy-Brand was effectively a “do-over for the Browning-Ferris parties,” and since NLRB Member William Emanuel’s former law firm represented Browning-Ferris in that case, he should have recused himself. Following this memorandum and Emanuel’s recusal, the NLRB unanimously vacated its Hy-Brand decision that overruled Browning-Ferris—and announced that Browning-Ferris was still good law.

The fight heats up

The Republican-controlled NLRB, intent on overturning the Browning-Ferris decision, decided to pass a rule redefining joint employers under its rarely used administrative rule-making authority. But since administrative rules require the agency to go through a series of steps and collect public comments, this rule will likely take years to become final. 

On December 28, 2018, the Washington, D.C. Circuit Court of Appeals, which, according to The New York Times, is “widely views as second in importance only to the Supreme Court,” released its long-awaited decision on the Browning-Ferris appeal. The Court issued an important and unqualified win for workers in affirming the NLRB’s 2015 Browning-Ferris decision, agreeing with the NLRB that its new Browning-Ferris test was firmly grounded in the common law. Using the unfortunate legal language of “master-servant,” the Court explained that “retained but unexercised control has long been a relevant factor in assessing the common-law master-servant relationship.”

The court fully affirmed the NLRB’s new Browning-Ferris joint employer test, but it sent the case back to the NLRB, because the NLRB did not fully apply its new test to all the facts of the particular case. This means that the NLRB must use its Browning-Ferris test going forward, which is good news for labor rights. 

The case is now headed to the NLRB, but that is unlikely to be the end of the road for this major issue. It is quite possible that this matter will eventually end up before the U.S. Supreme Court, and this should be cause for some concern among workers. The Supreme Court currently has an ultra-conservative majority, which has shown no hesitation in rewriting decades of law in support of employers in labor cases. As recently as 2014, the conservative majority of the Supreme Court engaged in a bizarre misreading of the definition of joint employer in order to deny labor rights to home healthcare workers. With the addition of Brett Kavanaugh, the Court has become more conservative since that time. Labor may have won this latest battle, but the fight is far from over.

This article was originally published at ThinkProgress on January 10, 2019. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Does security clearance expire?

Friday, September 21st, 2018

Once you are cleared to work for the federal government, the clock starts ticking on your security clearance.

If you stay in your job, you will have to be “reinvestigated” periodically. If you leave your federal agency or contractor job, your clearance can lapse in two years. As you move up the ladder, you may need to obtain a higher level of clearance.

The key is to know your clearance status and be proactive to retain clearance, upgrade or get reinstated.

When does security clearance lapse?

Confidential level clearance, the lowest security threat, is good for 15 years. Secret clearance lasts 10 years. Top Secret clearance must be reinvestigated (reauthorized) every 5 years. This assumes no incidents or allegations arise that would cause the government to scrutinize your clearance.

If you are separated from federal employment (voluntarily or involuntarily), your security clearance can lapse. If you resume work for another federal agency or a federal contractor within that time frame, your clearance is reactivated without an investigation. But if the clock expires, you will essentially have to re-apply for security clearance.

How long does it take to get cleared or re-cleared?

The background investigation accounts for the bulk of the processing period. Clearance for lower level jobs rely more on database searches, while positions with higher security involve interviews and other field work.

According to the National Background Investigations Bureau (NBIB), the average processing time for all security clearances in the defense industry is 325 days:

  • Secret and Confidential clearances average 259 days, and 220 days for reinvestigations.
  • Top Secret clearances average 543 days, and 697 days for reinvestigations.

Why does security clearance take so long?

The government clears about 4 million people per year, but that is not keeping pace with demand. There is an estimated backlog of 700,000 security clearance cases, about one-third of whom are federal contractors. Top Secret (TS) security clearances used to be performed in less than three months. Now even the most straightforward TS cases take a year or more.

The administration aims to shift all security clearance from the NBIB to the Department of Defense. Even if that is more thorough and efficient in the long run, such a huge transition will likely increase the backlog and chaos in the short term. Applicants will slip through the cracks. Hiring and advancement will be stymied. Agencies and defense clients will get restless.

The government is also shifting to “continuous evaluation,” rather than more labor-intensive field work, to manage clearance and renewals. This will ideally speed processing times and reduce the backlog, but again the growing pains will likely be felt by federal employees and contractors who get lost in the shuffle.

This blog was originally published by Passman & Kaplan on September 8, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

 

Amazon delivery drivers report wage theft and other abuses

Friday, September 14th, 2018

Amazon’s labor practices, from its warehouses to its corporate offices, are terrible—and of course its delivery workers don’t have it any better. Many of Amazon’s packages are delivered by third-party courier companies and drivers face a range of abuses, from wage theft to being pressured into risky behaviors to deliver packages on time, Business Insider reports based on interviews with 31 current or former drivers at 14 of the companies:

Four drivers across three companies said their employers misrepresented the job by promising health benefits without following through. One worker said that when he started his job, his employer promised that he would get health benefits within 90 days of employment. He said he was fired within days of qualifying.

Eight workers across four companies said drivers were denied overtime pay, despite working well over 40 hours a week. Thirteen workers across five companies complained about wages missing from paychecks.

Workers reported being pressured to be on the job on their days off, to work through injury, to ignore stop signs if they were running late, and being fired for challenging illegal practices.

Amazon, of course, says these are contractors and Amazon is trying to work with them to do the right thing, and so on and so forth. But plausible deniability is a key reason companies like Amazon do so much outsourcing of work, and the deniability is that much less plausible coming from a company with Amazon’s labor record in other areas of its business.

Generally speaking, if a giant corporation really really cares about something, its contractors get the message … and if it doesn’t care so much, well, this is what you get. There is one way Amazon can push back against coverage like this: by improving its practices and those of its contractors.

This blog was originally published at Daily Kos Labor on September 15, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos. 

The Trump Labor Board Just Made It Harder for Fast-Food Workers to Hold Corporate Bosses Accountable

Wednesday, December 20th, 2017

On December 14, the National Labor Relations Board (NLRB) overturned a 2015 policy that had made it easier for workers—particularly fast-food workers—to unionize and challenge their employers over unfair labor practices.

The Obama-era standard sprung from a 2013 case involving workers attempting to unionize at a recycling plant in Milpitas, Calif. The recycling company, Browning-Ferris Industries, owned the building but used a small staffing agency called Leadpoint to provide and manage workers. The local Teamsters union was trying to organize the employees, but it didn’t want to merely negotiate with Leadpoint: It wanted Browning-Ferris to be considered a joint employer and party to any labor contract. A regional director determined that Leadpoint was the sole employer, but the Teamsters requested a review, and the NLRB’s general counsel sided with union in a 3-2 vote.

The vote was hailed by unions and labor advocates for making it more difficult for corporations to distance themselves from certain legal violations—and for strengthening the bargaining power of subcontracted gig-economy workers.

The Browning-Ferris decision was also good news for fast-food workers and organizations like Fight for $15. Most fast-food companies use a franchising model, and Browning-Ferris made it easier for workers to hold corporations responsible for wage theft and union busting at individual locations. In 2014, the NLRB’s general counsel had already ruled that the McDonald’s Corporation could be considered a joint employer in various labor cases brought against the company’s franchises. But Browning-Ferris provided an entirely new legal dimension to the proceedings.

The Browning-Ferris decision was predictably criticized by industry groups, which immediately launched an all-out assault on the new rule. International Franchise Association lobbyist Matt Haller declared that the decision was “a knife-to-the throat issue,” pro-business organizations pressured Congress to block its implementation in their subsequent spending bill, and Browning-Ferris Industries challenged the decision in a federal appeals court.

Industry nervousness ended up being alleviated by the surprising election of Donald Trump, who successfully tipped the NLRB back to a Republican majority in September—and has sought to overturn the labor victories which occurred under his predecessor. The Trump administration recently ended Obama’s extension of federal overtime pay, and it’s preparing to eradicate a 2011 rule which protects the tips of wait staff. All of Trump’s NLRB appointees were connected to anti-union policies at their previous positions, but the confirmation process was fast-tracked, and they easily made it through GOP-controlled Senate. In overturning the Browning-Ferris precedent, the board claimed that the 2015 decision was responsible for “upending decades of labor law precedent and probably centuries of precedent in corporate law.”

In a statement, National Employment Law Project executive director Christine Owens called the reversal “just one more example of the Trump Administration favoring corporations over working people.”

“In this economy, employers are increasingly subcontracting out vital parts of their business to other contractors and/or using temporary employment agencies to fill vital positions,” said Owens. “The Browning-Ferris decision recognized that in these arrangements, companies that contract out work may still retain control over the conditions and standards that govern the work and how the workers doing the jobs are treated … the Trump NLRB has decided to let them off the hook.”

While there is no evidence that Trump was directly involved in the case, we do know that one his companies was impacted by the 2015 decision. In May 2016, catering workers at the Trump National Doral golf resort in Florida won a $125,000 settlement after suing for unpaid wages. As a result of the joint-employer liability, the workers were able to hold Trump Miami Resort Management responsible, even though an outside staffing agency had hired them.

It is likely that the Trump administration will soon work to overturn a number of additional Obama-era NLRB decisions. To the surprise of many, the board ended up adapting to the complexities of a changing economy under Obama and forcefully asserted the rights of workers in a number of important votes. Recent NLRB decisions have given graduate students the right to unionize at private universities, increased the bargaining power of workers at charter schools and made it easier for smaller groups of workers to unionize at companies. However, the term of the NLRB’s Republican chairman, Philip A. Miscimarra, ended just days after the board’s vote. Trump will at least have to wait until the Senate confirms his next nominee and reestablishes the Republican majority before he’s able to undo any of these changes.

This article was originally published at In These Times on December 21, 2017. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

America Holding Walmart’s Feet to the Fire

Wednesday, December 5th, 2012

Finally, someone is holding Walmart directly accountable for the abuse of workers in its contracted warehouses. “Recent discovery has established that Walmart bears ultimate responsibility for the violations of state and federal law committed against plaintiff warehouse workers,” said a court document filed in Los Angeles.  

Walmart Targeted In Warehouse Worker Lawsuit – Huffington Post  

“Wal-Mart employs a network of contractors and subcontractors who have habitually broken the law to keep their labor costs low and profit margins high. We believe Wal-Mart knows exactly what is happening and is ultimately responsible for stealing millions of dollars from the low-wage warehouse workers who move Wal-Mart merchandise.”

Warehouse Workers Sue Wal-Mart for Back pay and Damages – ABC News/Univision 

Corporate Welfare: instead of taking a small partition of their record profits, or slightly cutting CEO pay to help out their workers, Walmart wants YOU, the taxpayer, to pay for its workers’ healthcare. Just one more reason Walmart workers, and the population at large, are standing up to Walmart. 

Walmart Wants Taxpayers to Pick Up Health Care Costs – Truth Dig

Walmart wants you to think its workers love the store and love their jobs. If that’s the case, why are there unprecedented protests against the mega retailer spanning the country? Why is the store facing a lawsuit from contracted warehouse workers? Since Walmart has given us no real evidence that its workers love the store, maybe we are just supposed to take Walmart’s word for it? 

Walmart Wants You To Know That Their Workers ‘Love Their Jobs’ – Huffington Post

This post was originally posted on Change to Win on Monday, December 3, 2012. Reprinted with Permission.

About the Author: J Lefkowitz: Change to Win is a Strategic Organizing Center which focuses on using its “strength in numbers to reclaim the American Dream.” It’s target is middle class and working class Americans to hold corporations  and other large entities in our modern society accountable. You can learn more about Change to Win here.

D.C. Council Finally Acts to Help D.C. Residents Get Good Jobs

Thursday, November 3rd, 2011

Calvin Bio PhotoI have been unemployed since 2008, despite my constant efforts to find a job. This Tuesday, the D.C Council finally passed a bill that will make it easier for DC residents like me to get hired. Even before this bill was passed, city contractors were supposed to employ D.C. residents for at least 51% of their new hiring on city contracts. However, according to a report by the D.C. Employment Justice Center and other local organizations, the old “First Source” law was weak and not well enforced and not enough was done to connect the unemployed with jobs on city contracts. The new law, which passed its first vote yesterday, will address this problem by making city contractors more accountable for hitting the hiring targets. It will also create a workforce intermediary to connect workers with jobs, following in the footsteps of San Francisco’s City Build program and Boston’s Neighborhood Jobs Trust to create career pathways for unemployed D.C. residents.

One of the most important parts of the bill for me personally is the help it gives to employers who hire people who have been unemployed for a long time or who face special obstacles in finding a job. People like me.

You see, I have a criminal record. At first, I did not understand why I could not get work. When I finally got to see a copy of my decades old criminal record, I finally understood why no one would hire me. Looking at the record, I thought to myself, “I wouldn’t hire me.”

As a kid, I was attracted to the fast life. I was fascinated by the young guys driving Cadillacs, going to dances with alligator shoes, getting girls and so as an adolescent, I went wild. I didn’t have to go that route. I had good parents. I had a job. I wouldn’t tell my friends I had a job, but I would go out at night and then go to work the next morning. My lifestyle caught up with me when I was arrested in 1973. I was innocent of the particular crime charged, but at the time I was involved in drugs and petty crime. I served three and a half years in prison and six and a half on parole.

My life really changed while I was incarcerated. I got my GED, took college classes and eventually got married. I have been a law-abiding citizen now for more than 20 years, but my conviction is a red flag to any potential employer. They write me off before I have a chance to get my foot in the door. The truth is I spent three and half years in prison, but I am really serving a life sentence.

All throughout our country, there are millions of people who have paid their debt to society and who want to work, but very few employers are willing to hire us. At the age of 60, I have been through a diverse range of jobs and have a long list of qualifications that reflect this: commercial driver, telecommunications work, foreman and fleet manager at a tire company, and construction worker for the Department of Transportation. Yet I have been out of work for three years. I have applied for over 43 jobs and have been turned down for all of them. Right now, my only income comes from Social Security. It feels degrading to me because I am used to supporting myself. Beyond that, even with Social Security, I cannot even meet my basic needs.

I refuse to give up though. I am in the process of finishing my Associates Degree at Catholic University to become a certified addiction counselor. I want to help people avoid taking the route in life that I have. It is my lifelong dream to help educate and counsel ex-offenders so that they too can be solid citizens.

This First Source bill is a significant way to improve the lives of people who, like me, wish to be productive and responsible members of society, yet have their hopes constantly squashed by the lack of good jobs and by discriminatory hiring practices. This law gives me hope.

About the Author: Calvin Moore is a member of Workers Advocating for Greater Equality (“WAGE”), a project of the D.C. Employment Justice Center (www.dcejc.org).

Your Rights Job Survival The Issues Features Resources About This Blog