En Garde “User Employers”

By Bill Wright

The NLRB has reversed course on another issue significantly affecting employer relationships – not just relationships with employees, but also relationships with employee leasing companies. In Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016),  the Board decided that, if an employer (“the user employer”)  has its own employees and also leases employees under contract with an employee leasing company (“the supplier employer”), both sets of employees may appropriately belong to a single bargaining unit. With this ruling, the Board returns to a rule it reversed in 2004. For the last 12 years, to organize a unit that included both (a) the “user’s” employees and (b) the “supplier’s” employees assigned to the “user” required the consent of both employers. Now, consent is no longer necessary. The employees must still share a sufficient community of interest, but the unit with both employees and leased employees is not considered a multi-employer unit.

Still, an employer can only bargain over terms and conditions of employment the employer controls. Consequently, the “user’s” bargaining responsibility is limited to the scope of its joint-employer relationship with the “supplier.” However, the effect of this ruling is that the “user” and the “supplier” will be negotiating the terms of their own arrangement at the same time that they negotiate with the employees.

The Board disclaims any intent to discourage employee leasing. It just wants to assure employees’ full freedom of association and to equalize bargaining power between employers and employees. En Garde.