Monday, September 7, 2015

My industry is under attack -- again

Having failed to destroy the temping business with Obamacare, the Obama administration is trying again, this time through the National Labor Relations Board:
A federal labor board voted Thursday to redefine the employee-employer relationship granting new bargaining powers to workers caught up in an economy increasingly reliant on subcontractors, franchisees and temporary staffing agencies.
The decision by the National Labor Relations Board could upend the traditional arms-length relationship that has prevailed between corporate titans such as McDonald’s and its neighborhood fast-food franchises. And it comes as concerns are growing about a generation of new Internet-fueled business such as Uber and Lyft that depend heavily on independent contractors.
 The NLRB's own press release sounds pretty dry, but
In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.” With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.
The temporary attorney industry can expect massive upheaval from this. This would make the law firms that the agencies I work for contract with liable for the labor practices of the agencies. What does that mean? Well, since the law firms have no control over the labor practices of the agencies, it means at least one thing: the law firms will quit using agencies, which are one of the great facilitators that make my industry workable. Without agencies, temps will have to register with every law firm that uses temps, and keep track of when those firms need temps. We'll likely get paid a higher hourly rate, but my experience has been that the firms that hire temps directly tend to not do overtime -- they just hire more temps. Overtime, already hard to find, might disappear.

The other downside is that, if law firms continue using temp agencies, they will be targets of unionization efforts of the agency work force, since that is the intent of this decision. Previously, if a union were able to successfully organize at one agency, firms would be free to simply not hire temps through that union shop. Now, the union can force into negotiations any law firm that utilizes a temp agency the union is attempting to unionize. The firm won't have a choice but to negotiate with the union if it continues to use temp agencies, since the unions will be beating on the doors of all temp agencies, not just one or two.

Of course, this isn't anywhere near the first time Obama and the NLRB have acted to further union interests at the expense of employees and businesses. The Hill, a usually reliable lefty publication, provides a pretty good summary of how the Obama NLRB has been relentlessly, and often illegally, pro-union, which is not what the government agency is supposed to do. I can't bring myself to go into it, and The Hill does a surprisingly good job, so you can read it there.  Ultimately, this is just one more case where Obama and his minions pursue ideological policies -- in this case, pro-unionism -- at the expense of the economy and everyday people whose attempts to find work are now burdened by this ruling. Fuck you, Barry. Fuck you.

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