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Pair of NLRB Cases Could Land Temps, Low-Wage Workers the Protections They’ve Long Desired

Fast food protests have helped shape the national narrative about low-wage employment

Fast food protests have helped shape the national narrative about low-wage employment

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Two cases currently before the National Labor Relations Board (NLRB) will determine what it officially means to be an employer, and the ramifications for management in industries ranging from fast food to waste collection could be serious.  

Given the complicated nature of modern American labor the two decisions seek to determine who employs whom and therefore who can enter into collective bargaining agreements.  The cases aim to undress the chain of command hidden by layers of temporary staffing and franchising laws many companies exploit to lower labor costs.  

The first case is a consolidated case that will determine the future of fast food franchises. At question is whether McDonalds qualifies as a ‘joint employer’ along with the franchise owners.  It is one of the byproducts of a growing campaign to raise the minimum wage to $15 which has swept the nation.  

The Washington Post Wonkblog explains that former McDonald’s executive Richard Adams argues that the company is a “joint employer.”  Adams, now a consultant, says McDonald’s can leverage out franchisees who disagree:

“McDonald’s franchisees are pretty compliant,” Adams says. “They don’t really organize, they don’t really protest. And if you do, they tell you you’re not a good member of the McFamily. I don’t want to make this seem too Orwellian, but the average franchisee has about six restaurants, and the franchise agreement is for 20 years. You’re probably going to have a renewal coming up. If you’re not a compliant member of the team, you’re probably not going to get that renewal.”

The second related NLRB case is an appeal by the Teamsters involving Browning-Ferris Industries.  The union sought to hold an election for all of the employees at a California recycling plant, not just those employed by the service that makes up a bulk of the payroll.  The case has brought about the ire and swift reaction of several prominent big business lobbies on Capitol Hill, according to the Washington Post:

The NLRB’s call for briefs in the Browning-Ferris case returned reams of arguments from the National Association of Manufacturers, American Staffing Association, National Restaurant Association, National Retail Federation, American Hospital Association, National Waste and Recycling Association, National Hotel and Lodging Association, and the Associated Builders and Contractors — to name a few. The issue was discussed with great concern in a recent House hearing. Over the past few weeks, the International Franchise Association has published op-eds portending the death of the 770,000 “small businesses” it serves, which can range from single-store independent operators to larger companies with dozens of locations.

Mary Vogel, Executive Director of the National Council for Occupational Safety and Health, notes in an op-ed that the Browning-Ferris case could have a big impact on worker safety and could determine who has legal responsibility if something goes wrong on the job. Vogel gives the following examples of companies who ducked responsibility using a tangled web of command as an excuse:

“We don’t train temps”: That was the answer given to U.S. Occupational Safety and Health Administration inspector after Simon Martinez ,a 39-year old contract employee, was crushed to death by three 800-pound bales of cardboard at a Sonoco Recycling plant in Raleigh, N.C. It was the second death at the facility in less than two months.

“Not responsible”: 24-year old Travis Kidd, a temp at a company called Workforce Staffing, was killed in 2011 when he was run over by a trash compactor at a Cleveland County, N.C. landfill. “Landfill management,” OSHA reported, “felt they were not responsible to require or provide Mr. Kidd with the same PPE [personal protective equipment] because they considered him a temporary employee and not their employee.”

A temp’s temperature: 106.9 degrees: On May 29, 2012 Mark Jefferson, a former high school basketball star, went looking for work at Labor Ready in Trenton, N.J. He was assigned to a truck operated by Waste Management. After a nine-hour shift in 90 degree heat, he collapsed and never recovered; his internal temperature was recorded at 106.9 degrees. During his one and only day on the job, Jefferson never received training on using rest, shade and water to avoid the hazards of extreme heat.

12 percent of the U.S. workforce, over 17 million people, is employed in a temporary capacity. As this number has grown steadily over time, it has become increasingly irresponsible to deny these workers the rightful protections of full-time employees. Contract or freelance, you ask? How about human.


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