February 21, 2024

Employer Faces Double Whammy: Joint Employer Status Enables NLRA Violation

On February 21st, the 3rd U.S. Circuit Court of Appeals found that a company was a joint employer over a temporary worker placed at the company’s worksite by a staffing firm. As a result, the company violated the National Labor Relations Act (NLRA) when it “terminated” (they did not use the word “discharged”) the temp after the temp told a manager and company employees that he suspected race discrimination within the company. How/why? (Scroll to the bottom for a free webcast with more information)

Section 7 of the NLRA gives all non-supervisory employees (not just those represented by or belonging to a union) the right to act in concert for their mutual aid and protection. Said another way, two or more non-supervisory employees have the right to talk to each other about their wages, hours, or conditions of employment. The presence or absence of workplace discrimination is a condition of employment. So, when the worker expressed those concerns, he engaged in protected activity under the NLRA. When the employer fired him for that, that was unlawful retaliation and a violation of the NLRA. Oops #1.

But he wasn’t an employee; he was an agency temp. That’s what the employer thought. Oops #2. The defendant employer did not appeal the Board’s initial determination that it was a joint employer with the temp agency. In the Board’s original decision (11/23/22) found the two entities to be joint employers writing, “we find that [the employer] exercised direct control over the supervision, direction, schedules, and duration of assignments of [agency]-supplied employees.”

Lessons Learned about the NLRA’s Protected Activities and Section 7 Rights. The court points out:

  • The manager told employees to “follow the chain of command” when reporting concerns. Instead, consider offering employees an alternate resource like HR or another that is outside that chain.
  • The manager told employees there would “be a problem” if they talked about workplace discrimination among themselves. That is their legally protected right.
  • “Intent does not matter”! That is what the court wrote. It does not matter that the supervisor did not intend to interfere with employees’ Section 7 rights. The question is whether those actions would likely deter employees in exercising those rights.
  • A rose is a rose. The employer claimed the worker’s comments were “gripes” and not protected activity. The Board did not buy it. When an employee (or worker) expresses a concern, listen. Don’t disregard it or scold the worker just because you think they are whining or griping.

Speaking of joint employer status. Join us March 11th for a FREE webcast on the NLRB’s final rule and the U.S. Department of Labor’s final rule on independent contractor status. Pre-approved by HRCI and SHRM for 1.25 credits.